May 4, 2015

VA Rule Changes

The time has come and gone for "public comment" regarding new proposed rule changes to the VA's non-service connected benefits program. The benefits can provide much needed relief to seniors struggling to provide for their own long term care expenses. Currently, eligible veterans or their surviving spouses can collect up to almost $2,100.00 per month if married; $1,750.00 per month if single; and, $1,150.00 per month as a surviving spouse.

Proposed regulations introduced in late January, will, more than likely, be effective in the near future. The regulations will introduce a three (3) year "look-back" period and "penalties" for asset transfers performed to create eligibility for these benefits. The regulations, like most new legislation creates uncertainty. Many of the provisions within the regulations appear to affect veterans eligible under current law and treat applicants differently depending upon the class of eligibility they are seeking.

Pursuant to federal law, regulations like these, should not become law any earlier than one (1) year from the expiration of the "public comment period." The public comment period expired in late March of this year. According to this analysis, more than likely, the effective date of the new regulations will be April 1, 2016. However, as with much legislation, executive orders, and regulations, the answer remains clear as mud. For now, the best path remains to move forward with planning and seek assistance from skilled elder law professionals that understand current law.

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March 1, 2015

Michigan Vietnam Vets Agent Orange Exposure

Michigan veterans may be able to file presumptive claims related to exposure to herbicides from their service in Vietnam. In august of 2010, the VA released a list of over thirty (30) presumptive conditions associated with exposure to Agent Orange and other herbicides.

The VA also tweaked its rules with regard exposure to these herbicides to include naval and other veterans that did not have "boots on the ground" during the Vietnam era. A great example are United States Navy Veterans. Blue Water Veterans are those who served in deep water, but did not actually dock or set foot on land in Vietnam; whereas, Brown Water veterans patrolled the inland shoals and waterways.

Brown Water veterans are covered by statute related to presumptive conditions; whereas, Blue Water veterans must prove that they were directly exposed (forming a nexus) and are not covered presumptively, with the exception of those with non-Hodgkins lymphoma (which is presumptive to Blue Water service).

In presumptive cases, the Blue Water veteran must have set foot on ground or served on ships that went into the waterways--the burden is on the veteran to prove he or she was actually on a ship that was in these waterways. The VA has provided a list of ships that may qualify. You may click on this link to be forwarded to these lists.

Any veteran who can prove direct exposure to Agent Orange or another herbicide can still be granted benefits, but would have to prove the exposure and associated medical condition.

If you are a Michigan Veteran and need assistance in the Detroit area or West Michigan, please call 1-866-529-3537; (586) 264-3756; or, (616) 931-3670.

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February 25, 2015

Still Time to Help Veterans

In about a month, the public commentary period for the new proposed VA regulations will end. There is still time to help our veterans and seniors that rely on non-service connected, improved pension and aid and attendance benefits. In Michigan there are about 600,000 living veterans that can become eligible for these benefits.

The proposed regulations are too restrictive, do not provide "cures" for ineffective planning, and will create a reliance on other, more costly, federal and state benefits. The likely outcome of the proposed regulations will be that seniors and veterans will be dissuaded to apply for benefits that are desperately needed to assist with memory care, assisted living and home care.

Please see our earlier posts regarding these changes.

Public comments may be submitted through the federal website or by mail or hand-delivery to: Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments must include that they are in response to “RIN 2900-AO73, Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.”

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February 18, 2015

Michigan Merchant Marines May Qualify as Veterans

Many deserving veterans are often overlooked when considering VA benefits to assist with the cost of long term care. Specifically, Merchant Marines, serving during World War II may qualify for VA Aid and Attendance. During Worl War II, Merchant Marines took up arms to assist in the Pacific and Atlantic to support Allied forces and to ensure that precious cargo and supplies continued during the Period of Armed Conflict, December 7, 1941, to August 15, 1945.

Michigan Merchant Marines serving during this time, can qualify for the same VA benefits that are available to their United States Navy brethren. Such benefits can provide up to:

$2,120.00 per month for a married veteran
$1,788.00 per month for a single veteran
$1,149.00 per month for a surviving spouse

These benefits can be sued to provide for home care, assisted living or full nursing care. To find out more about these benefits, please call SMDA, P.C. at 1-866-529-3537; or, (586) 264-3756; or, (616) 931-3670. If you do not immediately qualify to receive these benefits, you can, through planning.

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February 2, 2015

Michigan Veterans and Proposed VA Regulations

Michigan veterans and seniors need to express their concerns over proposed new VA regulations affecting their ability to plan for benefits. Our office supports changes to regulations in order to protect seniors and veterans in Michigan, but, changes need to be consistent with Congressional intent, the Constitution itself, and, at the very least, consistent with Medicaid regulations that are true and tested over time.

Current VA regulations DO NOT include a "look back" period. This has provided unscrupulous planners to take advantage of the law to sell financial products unfit for seniors facing long term care planning decisions.

Seniors and veterans using accredited attorneys, agents, or other planners skilled in elder law often provide sound, legal strategies to ensure that seniors and veterans that need help, DO NOT exhaust their assets because of the cost of their care and are others forced into a nursing home, at the federal government's own expense, in the form of Medicaid.

The proposed new regulations will create regulations that arbitrarily treat different classes of claimants differently, potentially violating the United States Constitution and federal law. Specifically, the proposed regulations, as written, will:

1. Treat a married applicant differently from a single veteran or surviving spouse, by creating a longer penalty period for single veterans and surviving spouses that "give away" the same amount of money or asset--effectively disproportionately treating different classes of people applying for the same benefit.

2. Not follow Medicaid regulations. Although the VA directly references that it wishes to uphold the "spirit of Medicaid regulations" it does not allow: hardship provisions for gifts made for reasons not related to planning; does not allow an opportunity to "cure" gifts or transfers; treats annuities as "gifts" and, subjects prior claimants and applicants to the same penalties as applicants AFTER the proposed regulations are adopted. These are all concepts and ideas allowed, and, or, accepted pursuant to Medicaid regulations.

3. Circumvent Congress. The new regulations do not comply with the intent of Congress. Congress has introduced several different bills from 2012-2014 without adopting any laws to change VA practice. By not allowing our lawmakers to create laws for the VA to follow, the VA has essentially taken it upon itself to make its own law.

4. Unfairly treat people who engage in simple estate planning through the use of a living trust. The new regulations define all transfers to trusts as transfers for less than fair market value; thus, subjecting people using living trusts to divestment penalties.

5. Contradict the VA itself. Even thought he VA specifically addresses that they are trying to end planning techniques that allow applicants to become eligible through the use of planners (i.e. professionals like attorneys, CPAs and financial planers) statistics show that less than one percent (1%) of applicants make transfers to become eligible for benefits, which in turn, probably means even less are seeking the services of professionals to become eligible for benefits.

6. Violates due process. Current claimants that are eligible under current law will be denied continued eligibility based upon transfers that they made prior to the date of their original applications.

The above examples can all be used to address your local Congressperson to illustrate why allowing the VA to adopt its own proposed regulations is a bad idea and will hurt seniors and veterans. You may find out who your Congressperson is by following this link.

You may also contact the VA directly with your comments by phone, email, or letter by using the following information:

Martha Schimpf, Analyst

Pension and Fiduciary Service (21P)
Phone 505 364-4817
Fax 505 346-4861

Veterans Benefits Administration,
Pension and Fiduciary Service (21P)
810 Vermont Avenue NW.,
Washington DC 20420

You may also post your comments directly to the federal website by following this link.

Your voice is important. You need to be heard!

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February 1, 2015

New VA Rules Will Affect Michigan Veterans

Your help is needed to protect Michigan veterans and seniors. The Department of Veterans Affairs (VA) has introduced new regulations that will negatively affect your ability to receive benefits for yourself and your loved ones.

New proposed regulations, introduced January 23, 2015, will create a three (3) year “look-back” period for applicants, similar to Medicaid. It will eliminate your ability to protect your assets through legal planning strategies to immediately qualify for benefits.

Although our office supports protecting veterans and seniors from abusive planning practices, the new policies simply go too far by creating several unintended consequences:

• Create a longer time period for approval as the VA reviews financial transfers occurring within three (3) years of application.

• Potentially disqualify seniors and veterans that are currently eligible to receive benefits.

• Dissuade seniors and veterans from pursuing benefits for home care, independent living, and, assisted living.

• Encourage more people to apply for Medicaid creating a greater strain on the federal budget.

Our legislature decided NOT to pursue similar regulations in the past. Now the VA has taken it upon itself to create new law.

If we do not act now, these policies can become law as early as April 1, 2015 hindering service organizations from helping our World War II, Korean War and Vietnam War veterans qualify for benefits they need for their care.

Our voices need to be heard. We need people to contact their representatives in congress and the VA itself. Residents of senior communities, seniors, veterans, families of veterans, and senior living communities themselves need to express their opposition to these new proposed regulations.

Call, write, or e-mail the VA to let them know that these proposed rules need to be re-examined and not be put into law. Your opinion matters, contact the VA at:

Pension and Fiduciary Service (21P)
Veterans Benefits Amdinsitration
810 Vermont Avenue NW
Washington, DC 20420

The VA must receive comments before March 24, 2015.

You may also contact your legislator. If you do not know who your local congressperson is, you may find out by going online:

It is not to late to help our veterans and seniors.

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January 29, 2015

Michigan Veterans and Agent Orange, Agent Purple, Agent Pink, Agent Green

As most Michigan Veterans are aware, Agent Orange was not the only herbicide used in Vietnam. There was also Agent Purple, Agent Green, and Agent Pink, which were part of the "rainbow herbicides" used to defoliate the jungle of Vietnam Nam. Purple and Orange were also used in Canada.

Agent Purple was used before Agent Orange came on the scene, between 1962 and 1965.

Recent changes to the federal code of regulations governing VA benefit eligibility may allow Veterans exposed to herbicides to recover benefits due to exposure while in service. 38 CFR 3.309(e) states exposure to "herbicides"...not specifically to Agent Orange; therefore, exposure to Agent Purple should also be covered if the veteran served within the presumptive time frames covered in statute.

As a result, if you are a veteran and are now suffering from complications that you or your physician believe are related to exposure to herbicides used during the Vietnam era, you may be entitled to VA service connected benefits--EVEN if you previously made a claim and were denied benefits.

Another recent change to the law in August of 2010 opened the door to Veterans that suffer from over 30 itemized conditions that are now known as presumptive illnesses resulting from such exposure. Therefore, if you are a Veteran with a "presumptive illness" and have field a claim prior to August of 2010 and were denied, you most likely, can re-file for benefits from the date you filed your previous claim moving forward. Further, if you are a Veteran suffering form a presumptive illness and have never filed a claim it is now time to file.

We can help. Our attorneys are accredited with the VA. Please call SMDA P.C. at 1-866-529-ELDER; or locally, in Metro-Detroit (586) 264-3756 or West Michigan (616) 931-3670.

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January 29, 2015

An Open Letter to Congress from Michigan Veterans and Seniors

Over the past few days, several attorneys that I collaborate with are scrambling to get the "word" out to our lawmakers about the VA's proposed changes to regulations affecting eligibility for improved pension and aid and attendance benefits.

In the last entry we encouraged readers to contact their representatives in the United States Congress to make their opinions count and voice opposition. Following a conference with members of a national networking group, Arizona Attorney, Steven Dabbs proposed the following letter. Feel free to "cut and paste" if you would like your voice to be heard to help our seniors and veterans. Your local lawmakers can be found at: Find Your Lawmaker

RE: This is submitted in response to ''RIN 2900-AO73, Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.'' Proposed Rules change.

Dear Representative,

The VA proposes to take benefits away from our wartime veterans. Throughout this proposed rule change, the VA sites that this is the intent of Congress. I oppose these rule changes and the attempt of the VA to circumvent Congress and betray the very group it is supposed to be serving: the veterans.
Is it the intent of Congress?

1. To cause a veteran or survivor not to seek the care he or she needs for fear of running out of money?

2. To have a bright line net-worth limit, which combines income and assets of both spouses tied to the CSRA, with a one- to two-year life expectancy as a basis for this limited amount? Further stating that this is what Congress wants because this is in line with the Medicaid asset limits. Not taking into account any of the other provisions that the Medicaid allows and pays for.

3. Is a 36 month look back what Congress wanted when it never made it out of committee to become important enough to be voted on by the entire body of Congress? This is wrong on so many levels, main result is it harms Veterans.

4. Is it the intent not to have a clear grandfathering of current claimants if these rules were adopted? Which will cause added and undue stress to current claimants and loved ones if these changes were to be implemented, and they potentially will have their claims benefits reduced or stopped all together. If this is exactly the impact of these changes will cause.

5. Is it the intent of Congress to increase the cost of care, depleting veterans' assets further? Resulting in the veteran not to seek needed care by requiring caregivers to be licensed and denying care received in independent living communities as a medical expense. Reversing a 2013 VA decision.

6. Is it the intent of Congress to drive veterans to the taxpayer-funded Medicaid program, which would be an unnecessary traumatic experience for the veterans who paid such a dear price serving our country?

7. Is it the intent of Congress to make veteran pensions more restrictive than Medicaid by disallowing the use of trusts and annuities as legitimate long-term care needs planning tools? Is this not a contradiction where Congress allows this type of planning with one program but not another?

Do not allow the Veterans Administration, which is a government agency, to deliberately harm our veterans and to interpret the intent of Congress, at the same time circumvent Congress.


Any contact with lawmakers and the VA can only help get the message out that seniors and veterans rely on these benefits to avoid nursing home care and Medicaid qualification.

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January 26, 2015

Proposed VA Regulations May Affect Eligibility

On Friday our office received notice that the VA has submitted significant changes to non-service connect benefit eligibility that will directly impact Michigan Veterans and Veterans nationwide. Click here for a link to these changes.

Michigan Elder Lawyers, National Academy of Elder Law members and several Veteran Service Organizations (VSO) oppose the proposed regulations. Specifically, the changes will:

1. Create a three (3) year look-back period for new applicants.
2. Create a "broadline" test for asset eligibility based on Medicaid standards.
3. Treat planning techniques as "wealth transfers"

The result of the regulations, as they are currently worded will trigger the following unintended results:

1. Increase the "back-log" of applicants seeking VA benefits.
2. Disqualify current eligible benefit recipients moving forward.
3. Force more seniors and elders to apply for Medicaid.
4. Increase the amount of Medicaid dollars spent on nursing home care.
5. Cause many vulnerable seniors and veterans to not pursue assistance or help at home.

After failing to enact new legislation in Congress, the VA has decided to take it upon themselves to implement new regulations. In fact, Senate Bill 3270-944-748 failed in the United States Senate in 2013. The bill proposed many of the same rules within the VA's new proposed regulations. If Congress did not believe that the regulations were proper for seniors and veterans that rely on assistance to provide for care, why should the VA be allowed to circumvent the process by introducing regulations that will make "bad law?"

Although our office supports changes to the current regulations that allow seniors and veterans to become eligible for benefits with some planning, the new regulations simply go too far.

The proposed changes are available for public comment until March 24, 2015.

There is still time to express your concerns regarding these regulations by contacting BOTH the VA and your lawmakers at:

Pension and Fiduciary Service (21P)
Phone 505 364-4817
Fax 505 346-4861

Veterans Benefits Administration,
Pension and Fiduciary Service (21P)
810 Vermont Avenue NW.,
Washington DC 20420

Your local lawmakers can be found at: Find Your Lawmaker

With your assistance, we can stop the federal government from introducing regulations that will not only hurt our seniors and veterans, but also take away benefits from our honored WWII, Korean War, and Vietnam Veterans.

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January 21, 2015

Michigan Nursing Home Patients Have Elder Law Options

Michigan families in Metro-Detroit and West Michigan helping a loved one with long term care, elder law, Medicaid, and VA assistance are faced with several difficult questions. The most important question involves the type of placement that is appropriate for their loved one. Often times, nursing home care or "homes for the aged" as they are licensed, are the first answer to the placement question. Nursing homes, are designed to help those that truly need the most care. If your loved one does not truly need "full 24 hour care" better placement solutions can be found at adult foster care facilitates, independent living facilities or private care facilities. Despite the placement options available, most families solely make the decision based on finances and available governmental benefits.

Continue reading "Michigan Nursing Home Patients Have Elder Law Options" »

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December 5, 2014

Michigan Veterans Receiving Benefits Due For A Raise

As the year draws towards an end, the annual cost of living adjustments (COLA) for social security and other govenmerntal benefits are released. Hot off the press and effective January 1, 2015 the following will apply to qualified veterans receiving and or applying for non-service connected pension benefits in the form of aid and attendance:

Surviving Spouse $1,149.00

Single Veteran $1,788.00

Married Veteran $2,120.00

Improved Pension only $1,404.00

2 Married Veterans $2,837.00

Benefits can be used to help offset the cost of in-home, assisted living or other long term care.

If you have questions about becoming eligible to receive these benefits, please call our offices in both West Michigan at (616) 931-3670 or in Metro Detroit at (586) 264-3756.

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November 28, 2014

Picking a Fiduciary under Michigan Law

Now that you know the basic information about fiduciaries from our Fiduciaries: A Closer Look blog article, it is time to consider which individuals or entities are appropriate for these positions. If you live in Metro Detroit or West Michigan we can help you with your estate planning, but first you need to determine who will serve as your fiduciaries.

Personal Representative

The term personal representative applies to testate and intestate administration and replaces or includes the former titles of executor and administrator.

The personal representative’s primary job is to wind up the affairs of the decedent. It is a short-term job that entails locating and valuing assets, paying claims, taxes, and expenses; and making distributions to the beneficiaries. The role is quite different from the ongoing management role of a trustee.

It may be difficult to decide whether to name an individual or a corporate fiduciary. The corporate fiduciary typically is experienced in settlement procedures, professional asset management, and investment selection, but its fees may be too expensive for the estate. An individual, often a family member, is perceived as having the advantages of knowing the decedents affairs and the beneficiaries’ characteristics and personalities and being less costly to the estate.

Sometimes a testator prefers to name several persons, such as all of the children. The drawbacks of such an arrangement include complicated decision-making and administrative inconvenience that may lead to delay. Another drawback is the potential for miscommunication, especially when the parties are separated by distance. On the other hand, the arrangement may be the best choice when everyone should be included in settling the estate.

You should also name alternative nominees. There is no assurance that individual nominees will survive or will be willing to serve. Even a bank may decline to act under certain circumstances, or may not be in existence at the time of administration.


A trustee owns and manages property for the benefit of another. While the personal representative must quickly wrap up the decedent’s affairs, the trustee generally has a long-term management and investment function. Because of the differences in these respective job functions, you may have different nominees for each.

Because the function of a trustee is ongoing, you should select a trustee who most likely can serve the anticipated term of the trust. Banks offer the important advantages of permanence and stability. However, individuals may be more appropriate than banks, depending on the circumstances. The reason for creating the trust should influence the choice of trustee. If the purpose of the trust is for concerns that the beneficiary cannot manage their finances, then the trustee should have investment experience. If the purpose of the trust is to look after the daily welfare of a person, then a trustee should be someone who can take time to listen to, and make personal arrangements for, the beneficiary as well as handle investment and tax matters.


A guardian is appointed by the probate court or designated by parental or spousal nomination in a will or other document to exercise powers over a minor or legally incapacitated individual. MCL 700.1104(l). Generally, a guardian “has the powers and responsibilities of a parent.” MCL 700.5215.

Choosing a guardian for a minor or legally incapacitated individual is very important. Many young couples are concerned about a family fight over custody if the children are orphaned, or they fear that someone will be appointed who does not share their philosophies about child rearing.

Selection Considerations:

o Does this individual live in Michigan?
o If you appoint a couple, what happens if they get divorced or one dies?
o Does this individual share your child rearing philosophy?
o Does this individual have the financial ability to raise the children?
o Does this individual have other children?
o Does this individual want to raise your children?
o Does this individual travel frequently, or work long hours?


A conservator exercises full powers over the assets of a protected person. MCL 700.1103(h).

The conservator’s role is to manage and invest assets. Thus, only persons or institutions with skills in those areas should be candidates for nomination. Generally, the guardian will also be nominated as conservator. However, if this individual cannot manage money, then you may want to choose a different conservator.

If you are considering your estate plan, we can help. Serafini, Michalowski, Derkacz & Associates, P.C. is a general practice firm specializing in Estate Planning, Probate, Elder Law, Personal Injury, Disability Benefits, Bankruptcy, Family Law and Criminal Defense. We may be reached at 1 (866) 529-3537; in Metro Detroit at (586) 264-3756; or in West Michigan at (616) 931-3670.

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