49.454 Treatment of trust amounts.

(1) Applicability.

(a) Except as provided in sub. (4), this section applies to an individual with respect to a trust if assets of the individual or the individual's spouse were used to form all or part of the corpus of the trust and if any of the following persons 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.

4. A person, including a court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

(b) If the corpus of a trust under par. (a) includes assets of a person other than the individual or the individual's spouse, this section applies only with respect to the portion of the trust attributable to the assets of the individual or the individual's spouse.

(2) Treatment of revocable trust amounts. For purposes of determining an individual's eligibility for, or amount of benefits under, medical assistance:

(a) The corpus of a revocable trust is considered a resource available to the individual.

(b) Payments from a revocable trust to or for the benefit of the individual are considered income of the individual.

(c) Other payments from a revocable trust are considered transfers of assets by the individual subject to s. 49.453.

(3) Treatment of irrevocable trust amounts. For purposes of determining an individual's eligibility for, or amount of benefits under, medical assistance:

(a) If there are circumstances under which payment from an irrevocable trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to or for the benefit of the individual could be made is considered a resource available to the individual, and payments from that portion of the corpus or income:

1. To or for the benefit of the individual, are considered income of the individual.

2. For any other purpose, are considered transfers of assets by the individual subject to s. 49.453.

(b) Any portion of an irrevocable trust from which, or any income on the corpus from which, no payment could under any circumstances be made to or for the benefit of the individual, is considered to be an asset transferred by the individual subject to s. 49.453. The asset is considered to be transferred as of the date of the establishment of the trust, or, if later, the date on which payment to the individual was foreclosed. The value of the trust shall be determined for purposes of s. 49.453 by including the amount of any payments made from that portion of the trust after that date.

(4) Inapplicability. This section does not apply to any trust described in 42 USC 1396p (d) (4) or if the department determines, pursuant to procedures established by the department by rule, that the application of this section would work an undue hardship on an individual.

History: 1993 a. 437.

Transfer of a disabled ward's property to a newly-established “Medicaid Payback Trust" was in the ward's best interest and authorized by ss. 49.454 (4) and 880.19 (5) (b) [now s. 54.22]. Marjorie A. G. v. Dodge County Department of Human Services, 2003 WI App 52, 261 Wis. 2d 679, 659 N.W.2d 438, 02-1121.

Regardless of whether the asset held in an irrevocable trust is transferred as an annuity, it is nevertheless held in an irrevocable trust governed by s. 49.454, which specifically governs the treatment of trust amounts for purposes of MA eligibility. Estate of Gonwa v. DHFS, 2003 WI App 152, 265 Wis. 2d 913, 668 N.W.2d 122, 02-2901.

Sub. (1) (a) requires that the assets of the individual were used to form all or part of the corpus of the trust. Sub. (1) (a) 4. plainly brings within this section trusts that are not established directly by an applicant or person legally authorized to act on behalf of the applicant but are indirectly established by the applicant in that the applicant directs or requests another person to establish the trust using the individual's assets. Hedlund v. Department of Health Services, 2011 WI App 153, 337 Wis. 2d 634, 807 N.W.2d 672, 10-3070.

The documentary evidence in this case showed that a husband and wife transferred all of their property except for one checking account to their children, and, on the same day in the same document, the children transferred that property to the trust. The inference that the assets were transferred to the children for the purpose of establishing the trust for the parent's benefit is a reasonable inference from the evidence and satisfies the requirement in sub. (1) (a) 4. that the children created the trust at the direction or upon the request of the parents. Even if other benefits resulted from the trust, it does not follow that the trust was not established at the parent's direction or request. Hedlund v. Department of Health Services, 2011 WI App 153, 337 Wis. 2d 634, 807 N.W.2d 672, 10-3070.