Delaware Miller Trust Setup Guide — Qualify a Family Member for Medicaid Before the Next Billing Cycle

The bank step

The bank refusal nobody warns you about

You walk into your branch with the signed trust. The teller calls a manager. The manager has never seen one. They ask for an EIN. They tell you to come back with an attorney. You drive home with an empty trust account and a Medicaid clock ticking.

This is the single most common reason Delaware families lose a month of benefits, and it has nothing to do with the trust itself — it is a bank-procedure problem. The guide's bank section gives you the exact language to cite at the counter, the DHSS/DMMA policy reference to read aloud, and a printable resolution letter you can hand to the branch manager so they can escalate inside their own bank instead of sending you away.

Refusals the guide walks you through:

• Branch asks for a tax ID (EIN) for the trust account.
• Branch is unsure what kind of account this is.
• Branch has never opened a Miller Trust account before.
• Branch wants to know who is authorized to sign.
• Branch questions why funds move out of the account every month, or why the balance stays low.

Each refusal has a corresponding response in the guide, with the DHSS/DMMA citation behind it.

Avoid these

The 6 most common Delaware denial reasons

Every denial reason below cites DHSS/DMMA policy. The full guide explains each one in context and the order in which to verify them before submitting the Medicaid application.

▸ Trust funded with resources instead of only income

A Miller Trust must be composed only of income. No resources may be used to establish or add to the trust -- including resources voids the trust's Medicaid eligibility entirely, taking the whole trust outside the exemption. — DSSM Sec 20400.11.1

▸ Missing or defective state remainder-beneficiary clause

The trust must state that the State of Delaware receives all funds remaining in the trust at the individual's death, up to the total medical assistance paid on their behalf. A missing, weakened, or capped payback clause fails this requirement. — DSSM Sec 20400.11.1

▸ Trust improperly drafted as revocable

The trust must be irrevocable. A trust that can be revoked, or that lacks clear irrevocability language, does not qualify. — DSSM Sec 20400.11.1

▸ Trust payments not made in monthly intervals for medical care

Delaware's rule ties the transfer-of-assets exception to income placed in the trust being used for medical care, and explicitly instructs that payments be made in monthly intervals to avoid transfer-of-assets penalties. Irregular or delayed payments can jeopardize this protection. — DSSM Sec 20400.11.4

▸ Trust overfunded beyond what's actually paid for care

When income placed in the trust exceeds the amount actually paid out of the trust for medical services, the excess is subject to penalties under Delaware's transfer-of-assets provisions -- the opposite of the usual instinct to divert more income to be safe. — DSSM Sec 20400.11.4

▸ Trust payments made directly to the individual instead of for care

Payments from the trust made directly to the individual count as income to them if they could be used for food, clothing, or shelter -- regardless of whether they actually are. This can push the individual's countable income back over the cap. — DSSM Sec 20400.11.5

The author

Who's behind this

I'm James Whitfield — the person who hit the gap between an attorney-drafted document and a funded Medicaid trust (the short version is up top) and built this guide to close it. I'm not an attorney. I'm a researcher who has now read every DHSS/DMMA policy section that covers Qualified Income Trusts, and I publish what I learned with a citation on every claim. I won't advise you on your specific situation, draft anything, or review a document you or your attorney have drafted; for advice on your situation, you need a Delaware-licensed attorney.

Questions

Frequently asked questions

▸ Is the Delaware Miller Trust Guide legal advice?

No. This guide is informational only and is not legal advice. We are not attorneys and we do not practice law. DHSS/DMMA does not publish a fill-in trust form, so the guide teaches you exactly what Delaware's own regulation requires a compliant Miller Trust to contain, so you can brief an attorney efficiently and verify what they draft. For advice on your specific situation, consult a Delaware-licensed elder-law attorney.

▸ Does Delaware provide an official Miller Trust form?

No. DHSS/DMMA's governing regulation, DSSM Sec 20400.11, spells out in detail what a compliant trust must do -- income-only funding, irrevocability, monthly medical-care payments, an anti-overfunding limit, and a state payback clause -- but does not attach a sample or fill-in instrument. The Delaware Court of Chancery does publish a court petition form (CM50) for the guardianship pathway, but its own instructions confirm the Court cannot help draft the trust itself. The trust must be drafted, by an attorney or by you where Delaware law permits, to meet the requirements this guide lays out.

▸ What does the guide include?

A requirements-and-operations guide: the required-provisions checklist derived from DSSM Sec 20400.11 with a citation for each item, guidance on gathering what an attorney needs before your first meeting, the monthly funding worksheet, the bank-account walkthrough, and Delaware-specific denial-avoidance guidance -- including the monthly-payment and anti-overfunding rules. Delivered as a single PDF.

▸ Do you provide the trust document itself?

No. We never draft or provide sample or model trust language, generic or otherwise -- that would cross from explaining the law into practicing it. The guide tells you exactly what Delaware requires the finished trust to contain; drafting it is your attorney's work (or, where permitted, your own).

▸ Who needs a Miller Trust in Delaware?

A person applying for Delaware Medicaid long-term care -- the Nursing Facility Program or Long Term Care Community Services (Delaware's HCBS waiver) -- whose gross monthly income is above $2,485/month (2026). This is 250% of the SSI standard, lower than the 300% cap most states use. Both settings are tested against the same income standard.

▸ Does all of my income have to go into the trust?

Delaware's rule requires trust income to be paid out for medical care in monthly intervals, and it penalizes leaving more in the trust than what's actually paid out for care -- there is no explicit 'divert your entire paycheck' or 'excess-only' formula stated in the regulation. Confirm the right amount for your situation with your attorney.

▸ Does Delaware have a couple income cap?

No published couple standard exists for the Miller Trust -- Delaware tests each spouse's income individually against the $2,485/month single standard.

▸ Can I be my own trustee in Delaware?

Delaware's own regulation doesn't say who may or may not serve as trustee -- a genuine silence, not a confirmed answer either way. Confirm trustee eligibility directly with DMMA or your drafting attorney before naming one.

▸ Does a Delaware Miller Trust need an EIN?

Generally no. Delaware's regulation doesn't address tax-ID treatment at all. A trust funded only by the individual's own income is usually opened under the individual's own Social Security number. If a bank asks for an EIN out of habit, confirm the titling with your attorney and the bank.

▸ What if my bank refuses to open the trust account?

Bank refusal is common on a first attempt. The signed trust instrument is your documentation: it is a single, dedicated account titled to the trust. The guide walks you through handling first-attempt refusals and escalating to the bank's trust department if needed.

▸ What happens to the trust after the person on Medicaid passes away?

The State of Delaware is paid first, before any other distribution, out of whatever remains in the trust, up to the total medical assistance paid on the person's behalf.

▸ Do you offer a refund?

Yes -- money back if Delaware rejects the Miller Trust for any reason traceable to following the guide. Email support@millertrustguide.com within 30 days of purchase with the agency's stated denial reason and we issue a full refund within one business day.

▸ Will you talk to me on the phone about my situation?

No. We do not offer phone support and we do not advise on individual situations. For advice on your specific situation, consult a Delaware-licensed elder-law attorney -- you can find one through the Delaware State Bar Association's Lawyer Referral Service, Community Legal Aid Society (CLASI), or Delaware Volunteer Legal Services.

▸ Do you need an EIN to open a Delaware Miller Trust account?

DSSM Sec 20400.11 governs income and resource counting, not trust-formation or banking mechanics, and does not mention EIN or Employer Identification Number treatment anywhere in the chapter. As with most (d)(4)(B) grantor trusts funded by the individual's own income under 42 U.S.C. Sec 1396p(d)(4)(B), a Miller Trust is commonly opened nationally using the beneficiary's own Social Security number -- but this is not confirmed by Delaware's own policy. If a branch asks for an EIN out of habit, confirm the account titling with your attorney and the bank.

▸ Who can serve as trustee of a Delaware Miller Trust?

DSSM Sec 20400.11 (read in full, all nine subsections) contains no language specifying who may or may not serve as trustee of a Miller Trust, and no explicit prohibition on the beneficiary serving as their own trustee -- a confirmed silence in the rule text, not an oversight in this guide's research. Delaware Court of Chancery Form CM50 (used only in the guardianship pathway) shows a guardian petitioning the court for permission to serve as trustee in that specific context, but this does not establish a general statewide rule for applicants who have capacity or a valid power of attorney. Confirm trustee eligibility directly with DMMA or your drafting attorney.

▸ Which banks will open a Qualified Income Trust (QIT) bank account in Delaware?

There's no published list of banks that offer QIT accounts — most retail branches simply haven't opened one before, since it's an uncommon account type, not because anything is wrong with the trust itself. In practice: larger banks (Chase, Wells Fargo, Bank of America) generally have a centralized trust department that can process the request even when a branch teller can't; full-service branches (often a market's main branch) open commercial and trust-style accounts more routinely than limited-service branches; and community banks and credit unions are frequently the most willing, since their account-opening process tends to involve a human review rather than a screen-driven template. DSSM Sec 20400.11 governs income and resource counting, not trust-formation or banking mechanics, and does not mention EIN or Employer Identification Number treatment anywhere in the chapter. As with most (d)(4)(B) grantor trusts funded by the individual's own income under 42 U.S.C. Sec 1396p(d)(4)(B), a Miller Trust is commonly opened nationally using the beneficiary's own Social Security number -- but this is not confirmed by Delaware's own policy. If a branch asks for an EIN out of habit, confirm the account titling with your attorney and the bank. The guide includes the exact script to use at the counter and a printable letter for a branch manager if the first attempt is refused.

▸ When does Delaware Medicaid coverage begin after the Qualified Income Trust is set up?

Coverage begins the calendar month the QIT is signed, the trust account is opened, and enough of the applicant's income is deposited to bring remaining countable income below the income cap effective October 1994 (2026 dollar figure); personal needs allowance effective January 2025 special income limit of $2,485/month — all in the same calendar month. There is no back-dating, so every month of delay is another month of full private-pay care ($14,494–$15,132/month in Delaware). Source: DHSS/DMMA 16 Del. Admin. Code Sec 20400.11 ("Income Trusts (Miller Trusts)"), Delaware Social Services Manual (DSSM), Title 16 Sec 20000 (Medicaid Long Term Care); cross-referenced by DSSM Sec 20100.2.2 (250% of SSI income standard), Sec 20620.1 (Personal Needs Allowance), and Sec 20400.1 (trust definitions); federal authority 42 U.S.C. Sec 1396p(d)(4)(B).

▸ What happens to the money in a Delaware Miller Trust when the beneficiary dies?

On the individual's death, before any other distribution, the trust must pay the State of Delaware all funds remaining in it, up to the total medical assistance paid on the individual's behalf (DSSM Sec 20400.11.1). No dedicated Miller-Trust-specific remittance form or standalone payee address was confirmed during this guide's research; general Medicaid estate recovery is handled by DHSS/DMMA. Confirm the exact current remittance process with DMMA or your attorney at the time of need.

▸ Can you set up a Delaware Miller Trust without a lawyer?

No Delaware Supreme Court case, UPL Subcommittee opinion, or DSBA ethics opinion specifically addresses Medicaid-planning kits or trust-drafting kits. Delaware also has no codified statute criminalizing the unauthorized practice of law by non-lawyers generally -- UPL runs through Delaware Supreme Court Rule 62 and the UPL Subcommittee's own complaint-driven process, which issues no advisory opinions. That said, because DMMA publishes no fill-in form, drafting a Miller Trust from the requirements below means producing an original legal document from scratch -- a materially different task than filling in an existing state form. For most families, that argues for an attorney: self-drafting carries more risk of missing a required clause -- including Delaware's monthly-payment and anti-overfunding rules and its state payback language -- than filling in an existing form would. Budget for an attorney; this guide is what keeps that engagement efficient.

▸ Can an attorney, paralegal, or care manager use this guide for a client?

Yes. It explains Delaware's own published Miller Trust process in plain language, which works whether you're doing this for your own family member or for a client — professionals handling a case outside their usual specialty use it as a working reference this way. It doesn't replace your own judgment on a specific client's facts and isn't personalized advice; it's the same walkthrough of Delaware's official form either way. If you expect to use it across more than a handful of clients or want redistribution rights, email support@millertrustguide.com about licensing options.

Primary sources

State agency sources

Every claim in this guide cites a primary DHSS/DMMA document. Verify directly:

• Policy manual: DHSS/DMMA policy manual (section 16 Del. Admin. Code Sec 20400.11 ("Income Trusts (Miller Trusts)"), Delaware Social Services Manual (DSSM), Title 16 Sec 20000 (Medicaid Long Term Care); cross-referenced by DSSM Sec 20100.2.2 (250% of SSI income standard), Sec 20620.1 (Personal Needs Allowance), and Sec 20400.1 (trust definitions); federal authority 42 U.S.C. Sec 1396p(d)(4)(B)). This is the source for the required-provisions checklist — Delaware publishes no separate fill-in template.
• Delaware Court of Chancery Form CM50 -- Petition to Establish a Miller Trust: DHSS/DMMA — Delaware Court of Chancery Form CM50 -- Petition to Establish a Miller Trust . A court petition used only in the guardianship pathway, to ask the Court of Chancery for authority to establish a Miller Trust (and, where sought, permission for the guardian to serve as trustee). Filing fee $35 plus a $2/page scanning fee. This form's own instructions state the Court cannot help draft the Miller Trust itself -- the trust must be separately attorney-drafted and filed as an exhibit with the petition. Not a substitute for the trust instrument, and not required outside the guardianship pathway.