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Chapter: 1600 Assets Program: MSSI, SFP 35

1. Trusts set up by a family member (other than the individual or spouse) under the State of Florida Umbrella Trust Agreement for developmentally disabled or mentally ill individuals in accordance with Florida Administrative Code 65-19. Any money given to the beneficiary by the trustee would be considered as income. 2. "Individual trusts" when the beneficiary is a mentally retarded individual who resides in an ICF/DD, provided the trust or initial trust decree was established prior to April 7, 1986, and is solely for the benefit of that developmentally disabled or mentally ill individual. 3. Trusts established by will. 1640.0576.06 Undue Hardship/Trusts Set Up before 10/1/93 (MSSI, SFP) If undue hardship exists, only the amount of the trust that is actually made available as income or assets is counted. Undue hardship is defined as any situation in which an individual may be forced to go without life sustaining services because the proceeds from a trust fund are not available to the individual. This may be due to legal restrictions or illegal actions by the trustee. All undue hardship decisions must be reviewed and approved by the eligibility specialist. 1640.0576.07 Trusts Established On or After 10/1/93 (MSSI, SFP) The following policy applies to trusts established by an individual on or after 10/1/93.

An individual will be considered to have established the trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established the trust (other than by will):

1. the individual; 2. the individual's spouse; 3. a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or 4. a person, including a court or administrative body, acting at the direction or upon request of the individual or individual's spouse.

If the trust was not established by one of the above individuals, refer to passage 1640.0576.03.

If the trust is revocable:

1. Consider the entire principal as an available asset to the individual. 2. Consider any payments which can be made as countable income to the individual. 3. Consider any other payments from the trust as assets disposed of by the individual without fair compensation.

If the trust is irrevocable and there are any circumstances under which payment from the trust could be made to or for the benefit of the individual:

1. Consider that portion of the principal that could be available, as an asset to the individual. 2. Consider payments from that portion of the principal which could be available as income to the individual. 3. Consider any other payment from the trust as a transfer of assets.

If the trust is irrevocable and no payment could be made from the trust under any circumstances:

1. Apply the transfer of assets policy to the individual's assets and income used to establish the trust. The transfer policy applies only to applicants or recipients of nursing facility services and HCBS. 2. The trust is not counted as an available asset.

The above policies apply without regard to: