Sec. 156.2. Definitions

(a) Unless otherwise defined, the terms used herein shall have the same meaning as used in the program disclosure booklet for the program, as now in effect or hereafter amended (the program disclosure booklet), which describes the program’s operation and financial information and serves as the program’s offering document. The program disclosure booklet can be obtained from the program manager selected by the Comptroller pursuant to article 84 of the Mental Hygiene Law.

(b) The following terms used herein shall have the meanings set forth below:

(1) Account or NY ABLE account means an individual savings account established in accordance with section 529A of the code.

(2) Account owner means a person who opens an account pursuant to section 529A of the code. The account owner must be the designated beneficiary of the account, and an account owner may own only one account.

(i) Establishment of ABLE account. In accordance with Federal regulations adopted under section 529A of the Internal Revenue Code, an account may be established by the following persons, in order of priority of authority:

(a) the eligible individual;

(b) a person selected by the eligible individual; or

(c) if an eligible individual is unable to establish an account on his or her own behalf, the account may be established on behalf of the eligible individual by the following:

(1) the eligible individual’s agent under a power of attorney;

(2) the eligible individual’s legal guardian;

(3) the eligible individual’s spouse;

(4) the eligible individual’s parent;

(5) the eligible individual’s sibling;

(6) a grandparent of the eligible individual; or

(7) a representative payee appointed for the eligible individual by the Social Security Administration.

(ii) The person seeking to establish an ABLE account on behalf of an eligible individual shall certify, under penalty of perjury:

(a) the basis of such person’s authority to establish such account; and

(b) that there is no other person with higher priority pursuant to the hierarchy described in subparagraph (i) of this paragraph to establish the account.

(3) Designated beneficiary means, with respect to an account, any individual who is an eligible individual as defined under section 529A(e)(1) of the code, who establishes an ABLE account, is the owner of such account, and whose qualified expenses are expected to be paid from the account. A designated beneficiary shall be a resident of New York State or a resident of a state that does not have a qualified ABLE program recognized under section 529A of the code and such state has entered into a contract with New York State to provide residents of the contracting state with access to New York State’s ABLE Program.

(i) Signature authority over account. In general, the designated beneficiary will have authority over his or her ABLE account; however, if an individual other than the designated beneficiary establishes the account pursuant to clauses (2)(i)(b) and (c) of this subdivision, then such individual shall have signature authority and may select a co-signatory. If co-signatories are selected, such co-signatories may act separately or jointly.

(ii) Successor signature authority. The designated beneficiary may remove and replace any person with signature authority over such account and may designate a successor to the person with signature authority. If the designated beneficiary does not designate a successor to the person with signature authority, the person with signature authority over the account may designate such a successor, consistent with the order of priority in subparagraph (2)(i) of this subdivision.

(iii) Change in designated beneficiary. In accordance with Federal regulations adopted under section 529A of the Internal Revenue Code, the designated beneficiary of an account may be changed:

(a) during the life of the original designated beneficiary; or

(b) to take effect upon the death of the original designated beneficiary. If the change in designated beneficiary becomes effective upon the death of the original designated beneficiary, the amount of account assets to be transferred pursuant to such change is first subject to payment of any qualified disability expenses incurred but not paid and to post death payments as defined in section 529A of the Internal Revenue Code and related regulations.

(4) Nonqualified withdrawal means a distribution from an account which is not:

(i) a distribution made to a designated beneficiary for qualified expenses;

(ii) a distribution made to a designated beneficiary or to his or her estate on or after his or her death for qualified expenses incurred prior to or as a result of the death of the designated beneficiary; or

(iii) a distribution made to a designated beneficiary who is no longer an eligible individual.

(5) Qualified expenses mean any qualified disability expense defined in section 529A(e)(5) of the code, or in any regulations promulgated thereunder. Examples of types of qualified disability expenses include, but are not limited to, the following: education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, and expenses for oversight and monitoring, which are incurred during the lifetime of the designated beneficiary, and funeral and burial expenses of the designated beneficiary.