New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 281 - MEDICAID ELIGIBILITY - INSTITUTIONAL CARE (CATEGORIES 081, 083 AND 084) › Part 510 - TRUST STANDARDS › Section 8.281.510.9 - MEDICAID QUALIFYING TRUSTS (MQT)

Current through Register Vol. 35, No. 13, July 16, 2024
An MQT is a trust created prior to August 11, 1993. An MQT is
				  a trust, or similar legal device, established (other than by will) by an
				  applicant/recipient or an applicant/recipient's spouse, under which the
				  applicant/recipient may be the beneficiary of all or part of the distributions
				  from the trust and such distributions are determined by one or more trustees
				  who are permitted to exercise any discretion with respect to distributions to
				  the applicant/recipient. A trust established by an applicant/recipient or an
				  applicant/recipient's spouse includes trusts created or approved by a
				  representative of the applicant/recipient (parent, guardian or person holding
				  power of attorney) or the court where the property placed in trust is intended
				  to satisfy or settle a claim made by or on behalf of the applicant/recipient or
				  the applicant/recipient's spouse. This includes trust accounts or similar
				  devices established for a minor child. In addition, a trust established jointly
				  by at least one of the applicant/recipients who can establish an MQT and
				  another party or parties (who do not qualify as one of these
				  applicant/recipients) is an MQT as long as it meets the other MQT criteria. The
				  provisions regarding MQTs apply even though an MQT is irrevocable or is
				  established for purposes other than enabling an applicant/recipient to qualify
				  for medicaid; and, whether or not discretion is actually exercised.
A.
Similar legal device:
MQT
				rules listed in this subsection also apply to "similar legal devices" or
				arrangements having all the characteristics of an MQT except that there is no
				actual trust document. The determination whether a given document or
				arrangement constitutes a "similar legal device" shall be made by the
				department.
B.
MQT resource
				treatment:
For revocable MQTs, the entire principal is an available
				resource to the applicant/recipient. For irrevocable MQTs, the countable amount
				of the principal is the maximum amount the trustee can disburse to (or for the
				benefit of) the applicant/recipient, using his/her full discretionary powers
				under the terms of the trust. If the trustee has unrestricted access to the
				principal and has discretionary power to disburse the entire principal to the
				applicant/recipient (or to use it for the applicant/recipient's benefit), the
				entire principal is an available resource to the applicant/recipient. Placement
				of an asset excluded by 8.281.500.13 NMAC,
resource
				exclusions
, into a trust does not change the nature of the asset. The
				asset remains excluded, except for the home of an institutionalized individual.
				If the home of an institutionalized individual is placed in a trust, it becomes
				a countable resource. The value of the property is included in the value of the
				principal. If the MQT permits a specified amount of trust income to be
				distributed periodically to the applicant/recipient (or to be used for his/her
				benefit), but those distributions are not made, the applicant/recipient's
				countable resources increase cumulatively by the undistributed
				amount.
C.
Income
				treatment:
Amounts of MQT income distributed to the applicant/recipient
				or to third parties for the applicant/recipient's benefit are countable income
				when distributed.
D.
Transfer
				of resources:
If the MQT is irrevocable, a transfer of resources has
				occurred to the extent that the applicant/ recipient or grantor's access to the
				principal is restricted (e.g., if the trust states that the trustee cannot
				access the principal, but must distribute the income produced by that principal
				to the applicant/recipient, the principal is not an available resource and has,
				therefore, been transferred). See 8.281.500.14 NMAC.
E.
Beneficiary of trust lives in an
				ICF-MR:
If the beneficiary of a trust is an applicant/recipient who is
				mentally retarded and resides in an intermediate care facility for the mentally
				retarded (ICF-MR), that applicant/recipient's trust is not considered an MQT if
				the trust or trust decree was established prior to April 7, 1986, and is solely
				for the benefit of that applicant/recipient.
F.
Treatment of SSI or social security
				lump sum payments:
SSI or social security lump sum payments for
				retroactive periods which are placed in an MQT do not qualify for the 9-month
				exclusion from countable resources. The trust is evaluated as an MQT for
				purposes of medicaid eligibility.
G. Trust records shall be open at all
				reasonable times to inspection by the department and copies shall be provided
				upon the request of an authorized representative of the department.