dissenting.
Relying upon our decision in Lang v. Commonwealth, Department of Public Welfare, 515 Pa. 428, 528 A.2d 1335 (1987), the majority concludes that the instant trust cannot be considered a resource for the purpose of determining Jay's eligibility for benefits. At the time of the decision in Lang, I had serious reservations as to the wisdom of the result reached therein as evidenced by my vote concurring in the result. The theory adopted in Lang is that, in the absence of an express provision requiring states to withhold public monies from mentally disabled persons who are beneficiaries of privately provided financial resources, the release of such monies is governed by the State’s public policy with respect to apportioning costs of caring for the mentally disabled. In Lang we held that the testamentary trust under consideration provided for discretionary support, permitting the trustee to consider other available resources in determining whether to give principal or income to a mentally disabled beneficiary. Based upon that conclusion, the Court ruled that the principal and income were not available resources of the beneficiary for the purpose of determining his eligibility for medical assistance or his liability to reimburse the Commonwealth for the costs of his care.
In this case, the mother’s will provided that the remainder of her estate should be managed by the trustee and used “to pay to and use as much of the net income as may be necessary or desirable for the support, maintenance and *501care of ... my son Jay....” The majority, applying the rationale of Lang, concludes that the existence of a second beneficiary, Jay’s sister, combined with1 the trustee’s duty to determine what funds were “necessary or desirable”, indicates the testator’s intention that the trustee rely on whatever public funds were available for Jay’s care, rather than depleting the trust at the expense of the second beneficiary.
The majority’s continued reliance upon the reasoning of Lang highlights the error in the Court’s focus. Rather than examining the intent of the testator, the Court should concentrate on the resources available to the needy beneficiary under the trust, whether those funds be principal or interest. If the patient independently had sufficient funds to pay for treatment, he would be liable for those costs. See 50 P.S. §§ 4501, 4504(a). Similarly, if a person legally obligated to support a patient could afford to do so, he would not be able to rely on public resources. 50 P.S. § 4502. Thus, if the funds from a trust are sufficient to cover the cost of medical care, those funds should be depleted before resort to public funds is permitted. The existence of multiple beneficiaries should be irrelevant to such a determination; private citizens cannot be permitted to benefit at the expense of the public.
I, therefore, dissent.
. While it is true that the needs of the two beneficiaries were unequal, there is no requirement in the instrument that disbursements be identical.