Miller Trust / Qualified Income Trust (Mississippi)

MISSISSIPPI QUALIFIED INCOME TRUST (MILLER TRUST)

LONG-TERM CARE INCOME TRUST AGREEMENT

TRUST CAPTION

I. RECITALS

WHEREAS, [SETTLOR FULL LEGAL NAME] (hereinafter "Settlor"), now has a monthly income that exceeds the current Mississippi Medicaid institutional income limit established under 42 U.S.C. § 1396a(a)(10)(A)(ii)(V) (300% of the SSI Federal Benefit Rate); and

WHEREAS, the total monthly income received by Settlor is not sufficient to pay for expenses associated with long-term care services and related services; and

WHEREAS, Settlor's other assets have been exhausted or have been reduced to the level required by the Mississippi Division of Medicaid ("DOM") for resource eligibility; and

WHEREAS, Settlor desires to establish a Qualified Income Trust pursuant to Section 1917(d)(4)(B) of the Social Security Act (42 U.S.C. § 1396p(d)(4)(B)) and the Mississippi Division of Medicaid Eligibility Policy & Procedures Manual, Chapter 300 and § 303, in order to qualify for Medicaid long-term care benefits; and

WHEREAS, the principal purpose of this Trust is to receive all income payments due Settlor in excess of the Settlor's cost of care, including Social Security benefits, retirement benefits, pension benefits, interest, dividends, annuity payments, and any other recurring income;

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants set forth herein, Settlor and Trustee agree as follows:

II. PARTIES

A. Settlor

B. Trustee

C. Remainder Beneficiary

III. DECLARATION OF IRREVOCABILITY

This Trust is hereby declared IRREVOCABLE. Settlor expressly waives any right to revoke, amend, alter, or modify this Trust except as required to comply with subsequent changes in federal or Mississippi Medicaid law and only with the prior written approval of the Mississippi Division of Medicaid. Once qualified by the DOM, this Trust cannot be modified without DOM approval.

IV. FUNDING AND TRUST CORPUS

A. Income to be Deposited

The Trustee shall receive into the Trust the following categories of Settlor's monthly income:

B. Initial Deposit / Effective Date

The effective date of this Trust shall be [__/__/____]. Settlor and Trustee acknowledge that the effective date must be coordinated with the DOM Regional Office and that Medicaid eligibility cannot begin in any month prior to the stated effective date of this Income Trust.

C. Trust Bank Account

The Trustee shall establish and maintain a separate, federally-insured bank account titled in substantially the following form:

"[TRUSTEE NAME], Trustee of THE [SETTLOR NAME] INCOME TRUST u/a/d [DATE]"

V. ADMINISTRATION AND DISTRIBUTIONS

A. Cost-of-Care Allocation

(1) The Settlor's cost of care will be determined by the daily rate that Medicaid pays the nursing facility in which the Settlor resides.

(2) If the daily rate for the facility is less than the Settlor's income, the excess income will be used to fund this Income Trust.

(3) If the daily rate for the facility is more than the Settlor's income, the Settlor's total income, less authorized deductions, will be paid to the nursing facility.

(4) Income deposited into this Trust that exceeds the Settlor's cost of care shall be retained as part of the Trust corpus.

(5) Private Pay Rate Ceiling. Income placed into this Trust shall not exceed the private pay rate for the nursing facility in which Settlor resides. If total income is determined to be in excess of the private pay rate for a 31-day month for any month, Medicaid eligibility will be denied or terminated for the month(s) under determination.

B. Month-of-Entry Income Protection

A portion of the Settlor's income may be protected in the month of entry into long-term care. When income protection is applicable, there is no cost of care payable to the nursing facility. However, income above the amount that is $1.00 less than the Medicaid institutional income limit is payable to the Division of Medicaid within thirty (30) days after receipt of the notice issued by the Division of Medicaid approving eligibility. The approval notice will inform the Trustee of the amount payable.

C. Permissible Monthly Distributions

The Trustee shall make distributions in the following statutory order of priority:

D. No Trustee Compensation

No Trustee shall receive a Trustee's fee for services rendered to this Trust. Reasonable bank charges shall be allowed.

E. Investment Standard

The Trustee shall maintain the trust funds on deposit in a federally insured banking institution. No speculative investments, real estate purchases, or other investments are permitted.

VI. REPORTING AND ACCOUNTING

A. Annual Accounting to DOM

When requested, the Trustee shall furnish to the Mississippi Division of Medicaid an annual accounting to show all receipts and disbursements of the Trust during the prior calendar year.

B. Annual Eligibility Review

At the time of each review of the Settlor's Medicaid eligibility (at least annually) while this Trust is in existence, if the Settlor's income exceeds the cost of care, the Division of Medicaid will notify the Trustee of the amount that should be accumulated in the Trust. The Trustee will then be required to make payment of this amount to the Division of Medicaid up to the total amount expended by the Division of Medicaid on behalf of the Settlor that has not previously been repaid to Medicaid.

C. Failure to Make Required Payments

Failure to make requested payments to the Division of Medicaid may result in the loss of Medicaid eligibility for the Settlor.

D. Notice of Death or Termination

The Trustee shall give written notice to the Mississippi Division of Medicaid when the Settlor dies or when the Trust is otherwise terminated.

VII. TERMINATION AND ESTATE RECOVERY

A. Termination Events

This Trust shall terminate upon the earliest of the following:

☐ The death of the Settlor;
☐ Termination of the Settlor's Medicaid eligibility;
☐ The Settlor's income no longer exceeding the current Medicaid institutional income limits; or
☐ Any other termination of the Trust as approved by the Division of Medicaid.

B. Mandatory Remainder to Mississippi Division of Medicaid

Upon termination, all amounts remaining in the Trust shall be paid over to the Mississippi Division of Medicaid, up to the total amount of medical assistance paid by the Division of Medicaid on behalf of the Settlor under the State Medicaid Plan that has not previously been repaid. This obligation is mandatory under 42 U.S.C. § 1396p(d)(4)(B)(iii) and Miss. Code Ann. § 43-13-317 (Mississippi Medicaid Estate Recovery).

C. Estate Recovery

The Trustee acknowledges that the Mississippi Division of Medicaid maintains an Estate Recovery Program under Miss. Code Ann. § 43-13-317 and 42 U.S.C. § 1396p(b), and that the DOM's right to recover from this Trust upon termination is in addition to any estate recovery claim DOM may assert against Settlor's probate or non-probate estate.

VIII. GOVERNING LAW AND JURISDICTION

A. Governing Law

The provisions of this Trust shall be interpreted, construed, and enforced under the laws of the State of Mississippi, including without limitation the Mississippi Uniform Trust Code (Miss. Code Ann. § 91-8-101 et seq.) to the extent not inconsistent with the Qualified Income Trust requirements of 42 U.S.C. § 1396p(d)(4)(B).

B. Chancery Court Jurisdiction

Jurisdiction over this Trust is vested in the Chancery Court of [____________________________] County, Mississippi, pursuant to Miss. Code Ann. § 9-5-81 and Article 6, § 159 of the Mississippi Constitution.

C. Conservator-Established Trusts

If this Trust is established by a court-appointed conservator under Miss. Code Ann. § 93-13-251 et seq., the Trustee shall attach a certified copy of the Chancery Court Order authorizing the conservator to establish this Income Trust, and the Court shall be made aware of the requirement to pay the Mississippi Division of Medicaid any accumulated trust funds up to the amount expended by Medicaid.

D. Severability

If any provision of this Trust is held invalid under applicable federal Medicaid law or Mississippi law, the remaining provisions shall continue in full force and effect, and the invalid provision shall be reformed to most nearly accomplish the intent of qualifying this Trust under 42 U.S.C. § 1396p(d)(4)(B).

IX. EXECUTION

IN WITNESS WHEREOF, this [____________________________________] INCOME TRUST Agreement has been executed on this the [____] day of [__________________], 20[____].

SETTLOR:

____________________________________
[SETTLOR FULL LEGAL NAME], Settlor

TRUSTEE:

____________________________________
[TRUSTEE FULL LEGAL NAME], Trustee

The undersigned Trustee accepts the duties of Trustee under this Trust and agrees to administer this Trust in accordance with 42 U.S.C. § 1396p(d)(4)(B), the Mississippi Uniform Trust Code, and the Mississippi Division of Medicaid Eligibility Policy & Procedures Manual.

X. NOTARY ACKNOWLEDGMENTS

A. Acknowledgment of Settlor

STATE OF MISSISSIPPI

COUNTY OF [____________________________]

Personally appeared before me, the undersigned authority in and for said county and state, on the [____] day of [__________________], 20[____], within my jurisdiction, the within named [SETTLOR FULL LEGAL NAME], who acknowledged that (he) (she) executed the above and foregoing instrument for the purposes therein expressed.

____________________________________
NOTARY PUBLIC

My Commission Expires: [__/__/____]

(Notary Seal)

B. Acknowledgment of Trustee

STATE OF MISSISSIPPI

COUNTY OF [____________________________]

Personally appeared before me, the undersigned authority in and for said county and state, on the [____] day of [__________________], 20[____], within my jurisdiction, the within named [TRUSTEE FULL LEGAL NAME], who acknowledged that (he) (she) executed the above and foregoing instrument for the purposes therein expressed.

____________________________________
NOTARY PUBLIC

My Commission Expires: [__/__/____]

(Notary Seal)

XI. TRUSTEE INFORMATION SHEET

XII. FILING AND SUBMISSION CHECKLIST

☐ Original trust document signed by Settlor and Trustee
☐ Both signatures notarized
☐ Trust bank account opened at federally insured institution
☐ Initial deposit made to trust account
☐ Voided check or deposit slip from trust account
☐ Copy of conservatorship order (if applicable, under Miss. Code Ann. § 93-13-251)
☐ Copy submitted to DOM Regional Office for review
☐ Copy retained by Trustee
☐ Copy retained by Settlor or Settlor's representative
☐ Original filed with Medicaid application

XIII. SOURCES AND REFERENCES

• 42 U.S.C. § 1396p(d)(4)(B) — Qualified Income Trust (Miller Trust) federal exception
• Section 1917(d)(4)(B) of the Social Security Act
• 42 C.F.R. § 435.725 — Post-eligibility treatment of income (institutional cases)
• Miss. Code Ann. § 43-13-101 et seq. — Mississippi Medicaid statute
• Miss. Code Ann. § 43-13-121 — Powers and duties of the Division of Medicaid
• Miss. Code Ann. § 43-13-317 — Mississippi Medicaid Estate Recovery
• 23 Miss. Admin. Code Pt. 103, R. 5.18 — Income Trust Legal Forms
• Mississippi DOM Eligibility Policy & Procedures Manual, Chapter 300 (Resources) and § 303
• Mississippi DOM Eligibility Manual Appendix A-8-1 — Long-Term Care Income Trust Document
• Mississippi DOM Eligibility Manual Appendix A-8-2 — Long-Term Care Income Trust Help Sheet
• Miss. Code Ann. § 91-8-101 et seq. — Mississippi Uniform Trust Code
• Miss. Code Ann. § 9-5-81 — Chancery Court jurisdiction over trusts
• Miss. Code Ann. § 93-13-251 et seq. — Conservators of persons
• Mississippi Division of Medicaid: https://medicaid.ms.gov/

XIV. ATTORNEY DISCLAIMER

This template is provided for informational and drafting purposes only and does not constitute legal advice or create an attorney-client relationship. Mississippi Medicaid Qualified Income Trusts are subject to ongoing federal and state administrative interpretation, and the Mississippi Division of Medicaid retains discretion to deny eligibility if the Trust fails to substantially conform to its required form. Improper drafting, funding, or administration of a Miller Trust can result in denial or termination of Medicaid benefits, transfer-of-asset penalties under 42 U.S.C. § 1396p(c), or claims under Mississippi's Estate Recovery Program. Consult a Mississippi-licensed elder law attorney before executing this Trust.