§ 42-2-403 — Trust transfers affecting eligibility for medical assistance

(a) For purposes of determining an individual's
eligibility for or the amount of benefits under chapter 4 of
this title, the rules specified in subsections (d) and (e) of
this section shall apply to a trust established by the
individual.
(b) For purposes of this section, a trust shall be
considered to have been established if an asset of an
individual, other than an asset transferred by will, was used to
form all or part of the corpus of the trust by any of the
following:
(i) The individual;
(ii) The individual's spouse;
(iii) 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;
(iv) A person including a court or administrative
body, acting at the direction or upon the request of the
individual or the individual's spouse.
(c) In the case of a trust the corpus of which includes
assets of any other person, the provisions of this section shall
apply to the portion of the trust attributable to the assets of
the individual. This section shall apply without regard to:
(i) The purposes for which a trust is established;
(ii) Whether the trustees may exercise any discretion
under the trust;
(iii) Any restrictions on when or whether
distributions may be made from the trust; or
(iv) Any restrictions on the use of distributions
from the trust.
(d) In the case of a revocable trust:
(i) The corpus of the trust shall be considered
resources available to the individual;
(ii) Payments from the trust to or for the benefit of
the individual shall be considered income of the individual; and
(iii) Any other payments from the trust shall be
considered assets disposed of by the individual for purposes of
W.S. 42-2-402.
(e) In the case of an irrevocable trust:
(i) If there are any circumstances under which
payment from the trust could be made to or for the benefit of
the individual, the portion of the corpus or corpus income from
which payments to the individual could be made shall be
considered resources available to the individual, and payments
from that portion of the corpus or income to or for the benefit
of the individual shall be considered income of the individual.
Payments from that portion of the corpus or income for any other
purpose shall be considered a transfer of assets by the
individual subject to W.S. 42-2-402; and
(ii) Any portion of the trust or corpus income from
which no payment could under any circumstances be made to the
individual shall be considered, as of the date of establishment
of the trust or, if later, the date on which payment to the
individual was foreclosed, to be assets disposed by the
individual for purposes of W.S. 42-2-402. The value of the
trust shall be determined for purposes of W.S. 42-2-402 by
including the amount of any payments made from such portion of
the trust after the date specified in this paragraph.
(f) Notwithstanding any other provision of this section,
this section shall not apply to any of the following trusts:
(i) A trust containing the assets of an individual
under age sixty-five (65) who is disabled as defined by 42
U.S.C. 1382c(a)(3) and which is established for the benefit of
that individual by a parent, grandparent, legal guardian of the
individual or a court if the state will receive all amounts
remaining in the trust upon the death of the individual up to an
amount equal to the total medical assistance paid on behalf of
the individual under chapter 4 of this title;
(ii) A trust established for the benefit of an
individual if:
(A) The trust is composed only of pension,
social security and other income to the individual and
accumulated income in the trust; and
(B) The state will receive all amounts remaining
in the trust upon the death of the individual up to an amount
equal to the total medical assistance paid on behalf of the
individual under chapter 4 of this title.
(iii) A trust containing the assets of an individual
who is disabled as defined in 42 U.S.C. 1382c(a)(3), that meets
the following conditions:
(A) The trust is established and managed by a
nonprofit association;
(B) A separate account is maintained for each
beneficiary of the trust but, for the purposes of investment and
management of funds, the trust pools the accounts;
(C) Accounts in the trust are established solely
for the benefit of individuals who are disabled as defined by 42
U.S.C. 1382c(a)(3), by the parent, grandparent, legal guardian
of the disabled individual, by the disabled individual or by a
court; and
(D) To the extent that amounts remaining in the
beneficiary's account upon the death of the beneficiary are not
retained by the trust, the trust pays to the state from the
remaining amounts in the account an amount equal to the total
amount of medical assistance paid on behalf of the beneficiary
under chapter 4 of this title.
(g) The department shall establish procedures in
accordance with standards specified by the secretary of health
and human services under which the department waives the
application of this section for an individual if the individual
establishes that application would work an undue hardship on the
individual as determined on the basis of criteria established by
the secretary.
(h) For purposes of this section, "trust" includes any
legal instrument or device that is similar to a trust but
includes an annuity only to the extent and in the manner as the
secretary of health and human resources specifies.