Do You Need a Lawyer to Set Up a Miller Trust in Delaware?
Delaware's rules don't require an attorney, but because Delaware publishes no fill-in form, the trust has to be drafted from scratch, and most families use an attorney for that. Delaware publishes no fill-in Qualified Income Trust form, so the trust has to be drafted to meet DHSS/DMMA's own published requirements. This guide is informational only and is not legal advice.
What usually happens
Delaware doesn't publish a fill-in form, so the trust has to be drafted to DHSS/DMMA's requirements, and an elder-law attorney quotes $1,000–$2,500 to research and draft it. Once it's signed, you take it to the bank, where the branch has never opened one of these and says no.
Meanwhile the month is running out. In Delaware, 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 $14,494–$15,132.
This applies when the person who needs care has gross monthly income over Delaware's income cap of $2,485, whether you're their child, their spouse, or a professional helping them.
Free: the questions to ask a Delaware bank before your first visit
7 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 DHSS/DMMA's own materials say
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.
Why the drafting step is different in Delaware
Delaware publishes no fill-in form. Instead, DHSS/DMMA's policy ( Delaware Social Services Manual (DSSM) Sec 20400.11 ("Income Trusts (Miller Trusts)"), 16 Del. Admin. Code) lists what a compliant trust has to contain — 5 required provisions — and a trust missing any of them risks a denial. Writing an original legal document to that list is the part families most often hand to an attorney. The requirements walkthrough shows what the list covers.
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 Delaware
Delaware State Bar Association Lawyer Referral Service is the lawyer referral service for Delaware. Other resources for Delaware families: Community Legal Aid Society, Inc. (CLASI) Elder Law Program (declasi.org) -- Delaware's largest civil legal aid organization; handles Medicaid/Medicare benefits, powers of attorney, and advance directives for Delawareans 60+; Delaware Volunteer Legal Services (dvls.org) -- DSBA-affiliated pro bono services including adult guardianships and elder-law matters; Delaware Legal Help Link (delegalhelplink.org) -- statewide portal aggregating Delaware's nonprofit civil legal aid providers by topic; National Academy of Elder Law Attorneys (NAELA) Find a Lawyer (naela.org) -- national attorney directory searchable by Delaware zip code (no standalone Delaware NAELA chapter was found). The National Academy of Elder Law Attorneys also lists its members by state. For what attorneys typically charge, see what it costs in Delaware.
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.