See Bohac, 424 N.W.2d 144. A support trust permits a beneficiary to compel distributions of income, corpus, or both, for expenses necessary for the beneficiary's support. Id.; Chenot v. Bordeleau, 561 A.2d 891 (R.I. 1989); In the Matter of Leona Carlisle Trust, 498 N.W.2d 260 (Minn.App. 1993). If the Hecker trust reasonably could have been interpreted to be a support trust, then the Department may consider it as an asset when evaluating Herman's eligibility for assistance. See NDAC § 75-02-02.1-31(3).

In Minnesota, "Medicaid" is known as "medical assistance." In re Carlisle Trust, 498 N.W.2d 260, 263 n. 1 (Minn.App. 1993).See Minn. Stat. § 256B.056, subd. 3 (2002).

The issue of whether resources in a trust are available for the purposes of medical-assistance eligibility is also a question of law. In re Carlisle Trust, 498 N.W.2d 260, 263 (Minn.App. 1993). The challenging party has the burden to establish whether a trust is an available asset.

The categorization also determines whether a beneficiary can compel the trustee to distribute trust assets for the beneficiary's support. Matter of Carlisle Trust, 498 N.W.2d 260, 264 (Minn.App. 1993) (citing Restatement (Second) of Trusts § 128 cmts. d, e (1959)). In this case, S.W.'s ability to compel distribution of trust assets was put in controversy by the guardian's demand for such distribution.

The issue of whether resources in a trust are available to a beneficiary for determining his or her eligibility for medical assistance purposes is also a question of law. In re Carlisle Trust, 498 N.W.2d 260, 263 (Minn.App. 1993). The trust beneficiary has the burden to establish that a trust is not an available asset.

Some state courts have held that a special needs trust settled by a person other than the beneficiary is not a countable resource. See, In Matter of Leona Carlisle Trust, 498 N.W.2d 260 (Minn.App. 1993); In the Matter of Moretti, 159 Misc.2d 654, 606 N.Y.S.2d 543 (N Y 1993); Sanders, supra. The court finds that Miller is inapplicable here because Farmer created the trust for herself.

§ 1396a(a)(17) instructs Medicaid states to set reasonable standards for determining eligibility. See Matter of Leona Carlisle Trust, 498 N.W.2d 260, 263 (Minn.App. 1993) ("Participating states may develop their own standards for determining eligibility for Medicaid"). South Dakota's standard has not been shown to be unreasonable. William's assets were placed in a discretionary trust naming William as the beneficiary.

In reviewing MA eligibility determinations, we examine de novo the agency's decision for constitutional violations and other errors of law. In re Leona Carlisle Trust Created Under the Trust Agreement Dated Feb. 9, 1985, 498 N.W.2d 260, 263 (Minn.App. 1993) (reviewing de novo legal questions surrounding an individual's MA eligibility); In re Welfare of Sayles, 407 N.W.2d 414, 416-18 (Minn.App 1987) (reviewing an agency's MA eligibility decision for constitutional violations and other errors of law), aff'd, 427 N.W.2d 653 (Minn. 1988).

(If a trust were intended to provide general support, then the government would count the trust assets as available resources of the beneficiary and demand reimbursement for government benefits.) See generally Rosenberg at 109-17; see also, e.g., In re Escher, 407 N.Y.S.2d 106, 111-12 (N.Y. Sur. 1978) (the seminal case in New York), aff'd, 75 A.D.2d 531 (1980), aff'd, 52 N.Y.2d 1006 (1981); Zeoli v. Comm'r of Soc. Servs., 179 Conn. 83, 97 (1979); In re Carlisle Trust, 498 N.W.2d 260, 266 (Minn.Ct.App. 1993).

[¶ 38] Other courts reviewing trusts like the one in Hecker have employed the same analysis we used in that case, looking foremost to the discretionary character of the trust and viewing the language indicating the trust was to supplement outside funds as additional evidence of the settlor's intent. See, e.g., Matter of Leona Carlisle Trust, 498 N.W.2d 260, 264-65 (Minn.Ct.App. 1993); Matter of Estate of Benjamin T. Sykes, 345 N.W.2d 642, 644 (Mich.Ct.App. 1983); Zeoli, 425 A.2d at 556. However, once a trust is determined to be discretionary, that additional language is not necessary to the determination that the trust is supplemental to public assistance.