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30 TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE 20350.1.3.1Actions Which Result in Non-Receipt of Assets Examples of actions which would cause income or resources not to be received are: irrevocably waiving pension income; - waiving an inheritance; - not accepting or accessing injury settlements; - tort settlements which are diverted by the defendant into a trust or similar device to be held for the benefit of the plaintiff; - refusal to take legal action to obtain a court ordered payment that is not being paid, such as alimony. 20350.1.3.2Failure to Receive However, failure to cause assets to be received does not constitute a transfer of assets in all cases. For example, the individual may not be able to afford to take the necessary action to obtain the assets or the cost of obtaining the assets may be greater than the assets are worth. The specific circumstances of each case must be examined before making a decision whether an uncompensated asset transfer has occurred. 20350.1.3.4Joint Assets In the case of jointly owned assets (joint tenancy, tenancy in common, or similar arrangement) any action taken by the individual or by any other person that reduces or eliminates the individual's ownership or control of the asset will be penalized as an uncompensated transfer. See Section 20350.8 Treatment of jointly owned assets 20350.1.4 Resource Transfer The definition of a resource is the same definition as used by the SSI program, except that the home is NOT excluded for institutionalized individuals. In determining if a transfer of assets involves a SSI-countable resource, take into account those resource disregards used by the SSI program. 20350.1.5 Income Transfer The definition of income is the same definition as used by the SSI program. In determining whether a transfer of assets involves SSI-countable income, take into account those income disregards used by the SSI program. 20350.1.6 For the Sole Benefit of Requirement A transfer is considered to be for the sole benefit of a spouse, child who is blind or disabled, or an individual with a disability if the transfer is arranged in such a way that no individual or entity except that spouse, child who is blind or disabled, or an individual with a disability can benefit from the assets transferred in any way, whether at the time of the transfer or at any time in the future. A transfer, transfer instrument, or trust that provides for funds or property to pass to a beneficiary who is not the spouse, child who is blind or disabled, or an individual with a disability is not considered to be established for the sole benefit of one of these individuals. In order for a transfer to be considered to be for the sole benefit of one of these individuals, the instrument document must provide for the spending of the funds involved for the benefit of the individual on a basis that is actuarially sound based on the life expectancy of the individual involved. An exception to the "for the sole benefit of" requirement exists for certain trusts. Under these exceptions, the trust instrument must provide that any funds remaining in the trust upon the death of the individual must go to the State, up to the amount of Medicaid benefits paid on the individual's behalf. In these instances, it is a requirement that the State is also a beneficiary of the trust. 15 DE Reg. 202 (08/01/11) 20350.1.7 Fair Market Value (FMV) Fair market value is an estimate of the value of an asset, if sold at the prevailing price at the time it was actually transferred. In order to appraise the value of an asset, use the same criteria and methods that are used when determining Medicaid eligibility. For an asset to be considered transferred for fair market value, or to be considered to be transferred for valuable consideration, the compensation received for the asset must be in a tangible form. A transfer for "love and consideration", for example, is not considered a transfer for fair market value. While relatives and family members legitimately can be paid for care they provide to the individual, it is presumed that services provided for free at the time were intended to be provided without compensation. Thus, a transfer to a relative for care provided for free in the past is considered a transfer of assets. However, an individual can rebut this presumption with tangible evidence that is acceptable to Medicaid. 20350.1.8 Valuable Consideration Valuable consideration means that an individual receives in exchange for his or her right or interest in an asset some act, object, service, or other benefit which has a tangible value to the individual that is roughly equivalent to or greater than the value of the transferred asset. 20350.1.9 Uncompensated Value (UV) The uncompensated value is the difference between the fair market value at the time of transfer (less any outstanding loans, mortgages or other encumbrances on the asset) and the compensation received for the asset.