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46 TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE 107 .13409 .86591 108 .10068 .89932 109 .04545 .95455 20350.10 Exceptions to the Transfer of Assets 20350.10.1 Exceptions To Transfer Of Residence 20350.10.2 Exceptions To Transfer Of An Asset 20350.10.1 Exceptions To Transfer Of Residence The transfer provision does not apply to the HOME and title to the home transferred to: a. a spouse (as long as spouse does not then transfer property for less than fair market value); b. a child under 21 years of age; c. a child who is blind or disabled, as defined by the SSI program; d. a sibling who has an equity interest in the home and who has resided in the home for at least one year immediately before the date the individual becomes institutionalized; or e. a son or daughter of the individual (other than a child described above) who was residing in the home for at least 2 years immediately before the date the individual became institutionalized, and who provided care to that individual which permitted the individual to reside at home rather than in an institution. In items d. and e. above the property cannot be excluded unless and until the assets are actually transferred. Also verification for this would consist of a written statement from the parent indicating that this situation existed. If the parent is not capable, a statement from an adult child or sibling and statements from two other adults indicating that the situation existed would suffice. Statements must specify the number of years spent in the home and the exact nature of the care provided. 20350.10.2 Exceptions To Transfer Of An Asset The transfer provision does not apply to ANY asset transferred: a. to the individual's spouse, or to another for the sole benefit of the individual's spouse; b. from the individual's spouse to another for the sole benefit of the individual's spouse (OBRA 93); c. to the individual's child that is blind or totally and permanently disabled; d. to a trust containing the assets of an individual under age 65 who is disabled as defined by the SSI program and which is established for the benefit of the individual by a parent, grandparent, legal guardian of the individual or a court if the trust contains a provision that upon the death of the individual the State will receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of the individual (OBRA 93); e. to a pooled trust containing the assets of an individual who is disabled as defined by the SSI program and that is established and managed by a non-profit association if the trust contains a provision that upon the death of the individual the State will receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of the individual (OBRA 93). A transfer of assets or an establishment of a trust is considered to be for the sole benefit of a spouse, child with a disability, or individual under age 65, if the transfer is arranged in such a way that no individual except the spouse, child or individual can benefit from the assets in any way, either at the time of the transfer, or at any time in the future. If a beneficiary is named to receive the asset at the time of the individual's death, the transfer or trust will nevertheless be considered to have been made for the sole benefit of the individual if Medicaid is named as the primary beneficiary of the asset, up to the amount paid for services provided to the individual. To determine whether an asset was transferred for the sole benefit of a spouse, child, or individual with a disability, obtain a legally binding, written document (such as a trust document). The document must clearly define the conditions under which the transfer was made, as well as who can benefit from the transfer. A transfer without such a document cannot be said to have been made for the sole benefit of the spouse, child, or individual with a disability, since there is no way to establish, without a document, that only the individual will benefit from the transfer. Where it is alleged that an asset was transferred to or for the benefit of an individual who is blind or totally and permanently disabled, a determination must be made that the individual in fact meets the definition of blindness or disability used by the SSI program. If the individual is receiving either SSI or Title II benefits, accept the disability determination made for those programs. If the individual is not receiving those benefits, a separate disability determination must be made. The individual who is claiming the disability must submit acceptable medical evidence he has been determined disabled according to the