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52 TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE which do not benefit the individual, those payments are considered a transfer of assets for less than market value. The look-back period is 60 months for revocable trusts from the current date that the individual applied for Medicaid. 20400.5 Irrevocable Trusts An irrevocable trust is a trust that cannot in anyway, be legally revoked by the grantor. 20400.5.1 Treatment of Two Types of Irrevocable Trusts Irrevocable trusts are treated differently based on whether payment can or cannot be made for the benefit of the individual. 20400.5.1.1Irrevocable Trust States Payment Can Be Made To Or For The Benefit Of The Individual When the terms of an irrevocable trust state that payment can be made to or for the benefit of the individual from any part or all of the trust, the payments made are considered income. Any part of the trust or payment that could be paid for the benefit of the individual is treated as an available resource. When the terms of an irrevocable trust state that payment can be made to or for the benefit of the individual from any part or all of the trust, and the payment is not used for the benefit of the individual, the payment is treated as a transfer of assets. In this type of situation, the look-back period is 60 months. 10 DE Reg. 1613 (04/01/07) 20400.5.1.2 Irrevocable Trust States Payments Cannot Under Any Circumstances Be Made To Or For The Benefit Of The Individual When all or a portion of the principal or income on the principal of the trust cannot be paid to the individual or for the benefit of the individual, all of these payments are treated as a transfer of assets for less than fair market value. The date of transfer is the date the trust was established or, if later, the date on which payment to the individual was actually barred. When determining the value of the portion of the trust that cannot be paid to the individual, do not subtract from the trust the value of any payments made. If the trustee or the grantor adds funds to the trust after the date of transfer, these added funds are considered to be a new transfer of assets. The transfer date for these additional funds is the date that the new funds were placed in the trust. (Note, when determining the penalty period: if a previous penalty period is still in effect, the new penalty period cannot begin until the previous penalty period has expired.) Under this type of trust the look-back period is 60 months. 20400.6 Determination of Payment To determine if payments can or cannot be made from a trust use the following guidelines. 20400.6.1 Payment From a Revocable or Irrevocable Trust is Paid to or for the Benefit of an Individual Any payment from the trust principal or income produced by the trust that is paid directly to the individual, or to his/her guardian or legal representative is considered to be paid to the individual. If an individual benefits from any payment from the trust principal or income produced by a trust that is paid to another person or entity, the payment is considered to be made for the benefit of the individual. If a payment is counted as income under the SSI program, that payment would be counted as a benefit to the individual. Payments made on behalf of the individual for medical care are not counted in determining income eligibility under the SSI program; thus, such payments are not counted as income under the trust provision. 20400.6.2 Payments Can or Cannot Be Made From a Trust to or for an Individual Review the trust to determine if the trust places limits or restrictions on payments or the trustee. Only the amount of money or the portion of the trust that can or could be paid out is treated as a payment. This information is then used to determine if the payment is a resource for the individual. 20400.7. Trusts With Excluded Assets An asset that is excluded from being used in the determination of eligibility. An asset is all income or resources of the individual or eligible spouse. For asset exclusions see Section 20200 and Section 20310. 20400.7.1 Treatment of Excluded Assets Placed in Trust The placement of an excluded asset (income or resource) in a trust does not change the excluded nature of the asset; it remains excluded. Note: For institutionalized individuals, the home is no longer an excluded resource if placed in a trust. 20400.8 Trusts With Non-Excluded Assets All income and resources of the individual or the individual's spouse that are not excluded from being used in the determination of eligibility. 20400.8.1 Non-Excluded Assets Placed in a Trust Non excluded assets placed in a trust are treated as one of the following: - available income - available resources