801—10.17(35D) Divestment of assets.

1. 10.17(1)  “Intentional divestment of assets” means:

   1. a. To knowingly sell, give or transfer by member or legal representative for less than fair market value, any asset, the value of which would affect member support; or
   2. b. To knowingly and voluntarily place an asset, the value of which would affect member support, under a trust or other legal instrument that ends or limits the availability of that asset.

2. 10.17(2)  Transfers of resources shall be presumed to be divestiture unless the individual furnishes convincing evidence to establish that the transaction was exclusively for some other purpose. In addition to giving away or selling assets for less than fair market value, examples of transferring resources include, but are not limited to, establishing a trust, contributing to a charity or other organization, removing a name from a joint bank account, or decreasing the extent of ownership interest in a resource or any other transfer as defined in the Supplemental Security Income program.

   1. a. Convincing evidence to establish that the transaction was not a divestiture may include documents, letters, and contemporaneous writings, as well as other circumstantial evidence.

   2. b. In rebutting the presumption that the transfer was a divestiture, the burden of proof is on the individual to establish:

      1. (1) The fair market value of the compensation;
      2. (2) That the compensation was provided pursuant to an agreement, contract, or expectation in exchange for the resource; and
      3. (3) That the agreement, contract, or expectation was established at the time of transfer.

3. 10.17(3)  An applicant or legal representative shall not knowingly and intentionally divest an asset, as set out in subrule 10.17(1), within the period established by Title XIX statute prior to admission, with the intention of reducing the applicant’s member support or of obtaining admission to IVH.

   When it is determined by the commandant or designee that an applicant did intentionally divest an asset, upon admission that applicant may be charged member support as if the divestment did not occur.

4. 10.17(4)  A member or legal representative shall not knowingly and intentionally divest an asset, as described in subrule 10.17(1), while a member with the intention of reducing the member support.

   When it is discovered that a member or legal representative improperly divested an asset(s), that member may be charged member support as if the divestment did not occur.

[ARC 5800C, IAB 7/28/21, effective 9/1/21]