Do You Need a Lawyer to Set Up an Income Trust in Arkansas?
No. Arkansas DHS states in its Income Trust Fact Sheet that the trust "doesn't have to be prepared by an attorney," and it publishes its own fill-in form (DCO-9938). Arkansas DHS publishes its own fill-in form, so the core setup is completing it, naming a trustee, and opening the trust's bank account. Families with significant assets, gifts made in the last five years, a second marriage, or property in more than one state commonly bring in an Arkansas-licensed elder-law attorney anyway. This guide is informational only and is not legal advice.
What usually happens
You find the free Arkansas DHS form, and it looks simple. Then an elder-law attorney quotes $1,000–$2,500 to handle it. So you fill it in yourself, get it signed, and take it to the bank, where the branch has never opened one of these and says no.
Meanwhile the month is running out. In Arkansas, coverage can't start before the month the trust is funded, so a month that slips is another month of private-pay nursing care at $7,148–$7,711.
This applies when the person who needs care has gross monthly income over Arkansas's income cap of $2,982, whether you're their child, their spouse, or a professional helping them.
Free: the questions to ask an Arkansas bank before your first visit
6 questions for a five-minute phone call, so you find out whether a branch knows how to open this account before you make the drive. Emailed now, then 4 short follow-ups over the next 10 days — then we stop.
What Arkansas DHS's own materials say
Arkansas DHS states plainly in its Income Trust Fact Sheet (PUB-396) that "The Income Trust doesn't have to be prepared by an attorney." DHS publishes form DCO-9938 as a fill-in instrument and notes that "If you use the example DHS provides, approval is faster." Caseworkers may answer general questions, including what is required to fill in the blanks, but may not give legal or tax advice, and the fact sheet directs anyone who needs legal information to an attorney. The trust must be signed and notarized. If a guardian or an agent under a power of attorney signs, the court order or POA must be attached and can't be dated later than the trust. DHS's own legal review approves each trust.
What the Arkansas DHS form involves
Arkansas Department of Human Services publishes the trust as a fill-in form: Arkansas DHS Qualified Income Trust form . Arkansas Department of Human Services (DHS) publishes an official fill-in Income Trust instrument — form DCO-9938, 'THE ( ) IRREVOCABLE INCOME TRUST' (revised January 2023) — authored by DHS's Division of County Operations (DCO), the office that determines Medicaid eligibility. An applicant whose gross monthly income is over the cap uses it to qualify for Nursing Facility Medicaid, the ARChoices in Homecare or DDS waivers, Living Choices assisted living, or PACE. It is an income-only, irrevocable trust that names Arkansas DHS as remainder beneficiary up to the total Medicaid paid. Arkansas calls it an 'Income Trust' (its fact sheet also calls it a 'Miller Income Trust' or 'MIT') — its version of what is generically called a Miller Trust or Qualified Income Trust; the federal authority is 42 U.S.C. § 1396p(d)(4)(B). Two Arkansas features stand out. First, funding is excess-only: the current DCO-9938 has the settlor transfer only the income that exceeds the eligibility limit (a 2023 change — the state's older PUB-396 fact sheet still describes the old 'all income' rule, and the kit flags the discrepancy). Second, the DCO-9938 directs the trustee to file an annual fiduciary tax return, so the trust is generally set up with its own EIN rather than the beneficiary's Social Security number — a departure from most states. DHS's own PUB-396 says the trust 'doesn't have to be prepared by an attorney' and offers a downloadable example, and Arkansas lets the applicant serve as their own trustee. The kit explains how the published form works and links you to DHS's own materials; unlike New Jersey and Indiana, Arkansas does not publish a separate memo to banks. One thing to know: DHS's older PUB-396 fact sheet and Policy Manual §H-111 still describe putting all income into the trust, but the current form deposits only the income above the limit, and this guide follows the current form.
Completing it means entering the information it asks for and signing it the way its instructions say. After that come the parts that are banking rather than law: the trustee opens a dedicated account and moves the applicant's income into it each month. See the step-by-step setup for the full sequence.
When families bring in an attorney anyway
The trust itself is one document, but it sits inside a larger Medicaid application. These situations raise questions the trust doesn't answer, and they're where an elder-law attorney's fee usually earns its keep:
- Significant savings or property beyond the applicant's monthly income.
- Gifts or transfers in the last five years, which Medicaid's look-back reviews.
- A spouse still living at home, whose own income and allowances affect the numbers.
- Property or accounts in more than one state.
- An applicant who can't sign for themselves and has no one holding a power of attorney or guardianship. State agencies generally ask whoever signs for the applicant to show that legal authority.
Finding an elder-law attorney in Arkansas
The Arkansas Bar Association — Legal Assistance / Find a Lawyer (ARKANSASFINDALAWYER) is the lawyer referral service for Arkansas. Other resources for Arkansas families: Legal Aid of Arkansas (arlegalaid.org) — free civil legal aid; from 2026 the sole Legal Services Corporation–funded legal-aid organization serving Arkansas statewide; helps seniors with Medicaid, long-term-care, and related matters; Arkansas Law Help (arlawhelp.org) — the statewide self-help legal-information portal (Elderly Issues, Wills & Estates topics) with online intake for free legal aid; Arkansas DHS — Division of Aging, Adult, and Behavioral Health Services (DAABHS), the Choices in Living Resource Center (Arkansas's Aging & Disability Resource Center), and the Area Agencies on Aging — long-term-care options counseling and benefits help (humanservices.arkansas.gov); National Academy of Elder Law Attorneys (NAELA) — Find a Lawyer directory (naela.org). The National Academy of Elder Law Attorneys also lists its members by state. For what attorneys typically charge, see what it costs in Arkansas.
With or without an attorney, the bank is the next hurdle
Whoever writes or completes the trust, the trustee still has to open the account, and most branches have never opened one. Free one-pager: the questions to ask before you drive to a branch, emailed now. Then 4 more short emails over the next 10 days — then we stop.