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.

Sincerely

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.

Trustee:

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.

Guardian:

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?

Conservator:

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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November 21, 2014

Fiduciaries in Michigan

So you live in Michigan and have finally decided to create an estate plan and it is time to choose a fiduciary – but what does that really mean?

A fiduciary is an individual that stands in a special relation of trust, confidence, or responsibility in certain obligations to the testator. Michigan law creates several different types of fiduciary positions for estate planning.

Fiduciaries, such as a personal representative and trustee, owe obligations of prudence, reasonableness, and loyalty to the person for whom he or she acts.

A personal representative settles an estate in Michigan. In general, the personal representative must observe the “standard of care applicable to a trustee” and must settle the estate “as expeditiously and efficiently as is consistent with the best interests of the estate.” MCL 700.3703(1). For these purposes, the personal representative has broad authority to engage in a wide range of transactions.

A trustee has “all powers over the trust property that an unmarried competent owner has over individually owned property” and “[a]ny other powers appropriate to achieve the proper investment, management, and distribution of the trust property.” Thus, absent a restriction in the statute or the trust instrument, a trustee possesses very broad powers to act, so long as the powers are used prudently and in line with the purposes of the trust.

A power of attorney is a person that has powers conveyed to him or her through state statute. A person is selected as an “agent” by the document signor. Often, the agent is also referred to as an “attorney-in-fact” or “power of attorney”. As noted in our prior post, a power of attorney can convey specific or general all encompassing powers to an agent. The power of attorney is designed to avoid BOTH guardianship and conservator pursuant to state law.

Although fiduciaries are granted broad authority, they are critical for the distribution of your estate. Thus, is it important to carefully consider which individuals can be trusted with this power, and who will use this power to your benefit, by administering your estate in the most favorable manner.

For more information on the selection of fiduciaries, as well as, a more in depth discussion on their powers, contact your Michigan estate planning attorneys at Serafini, Michalowski, Derkacz & Associates, P.C. at either 1 (866) 529-3537; locally in Metro Detroit at (586) 264-3756; or, in West Michigan at (616) 931-3670.

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November 18, 2014

Michigan Durable Power of Attorney

Unlike conventional estate planning documents that deal with transfer of property to beneficiaries upon your death (i.e. last will and testament, or revocable trusts) the durable power of attorney operates during your lifetime and allows you to chose individuals to act on your behalf. At Serafini, Michalowski, Derkacz & associates, P.C., our estate plans generally include durable powers of attorney, as these documents are just as important as wills and trusts.

A power of attorney allows a person (the principal) to authorize another person (the agent) to act in his or her place. In Michigan, a Durable Power of Attorney (DPOA) is defined as a power of attorney by which a principal designates another as the principal’s attorney in fact in writing and the writing contains the words “This power of attorney is not affected by the principals subsequent disability or incapacity, or by the lapse of time” (DPOA Effective upon Execution) or “This power of attorney is effective upon the disability or incapacity of the principal” (DPOA Effective upon Disability).

A Durable Power of Attorney Effective upon Execution allows the agent’s authority to begin immediately after the written DPOA is signed. There are dangers in allowing an agent’s authority to begin immediately, and you should consider whether you trust the agent to have this power when you are not disabled. Although dangers are associated with a power that is immediately effective, there are also advantages. A primary advantage to making the DPOA effective immediately is that it eliminates the need to produce evidence that the agent’s authority has been triggered. A DPOA effective upon execution is generally favorable to married couples, where the benefit of acting anytime outweighs the concern of giving the agent too much power while the individual can make their own decisions.

A Durable Power of Attorney Effective upon Disability is contingent on the event of disability and protects against the possible unintended use of the power by the agent while the principal is not disabled. The problem with DPOA’s effective upon disability is that the principal must be declared disabled. An individual is declared disabled by court determination or the written certification of two licensed physicians. A DPOA effective upon disability is best for single individuals that do not want their agent to bind them during periods when they can make their own decisions.

Although a DPOA can be broad or specific, the agent generally has powers to handle the following:
1.) Collection and management of real or personal property
2.) Buying and selling of real property
3.) Borrowing money
4.) Business
5.) Banking
6.) Tax returns and reports
7.) Safe-deposit boxes (access to and removal of property from)
8.) Proxy rights
9.) Government benefits
10.) Employment benefits
11.) Legal and administrative proceedings
12.) Life insurance
13.) Transfers in trust
14.) Delegation of authority

For more information regarding powers of attorney, contact your Michigan estate planning attorneys at 1 (866) 529-3537.

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November 14, 2014

Updating Your Estate Plan

Estate planning for Michigan residents has become more user friendly over the past few years with the introduction of the Michigan trust Code (MTC) in 2010 and the Estates and Protected Individuals Code (EPIC) in 2000 it is clear that individuals have more power in preparing their own estate planning documents. Despite the more user friendly law, one thing remains clear--in order for changes to be effective they most clearly state the trust maker or testator's intent.

Continue reading "Updating Your Estate Plan" »

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November 11, 2014

Thank You Veterans

Thank you to all Michigan Veterans that have served our country. As a Michigan based law firm, we are proud to assist veterans with their benefits. Although we specialize in elder law and non-service connected pension benefits including Aid and Attendance, we can also provide assistance to veterans that have been wrongfully denied service connected benefits.

The most common service connected benefit claims that we are asked to pursue are those claims resulting from exposure to Agent Orange during the Vietnam era. Most veterans applied prior to the August 2010 ruling that created an entire list of presumptive conditions that will qualify for service connected disability benefits. Conditions can include diabetes, pulmonary problems, neurological disorders and certain heart conditions.

If you are a veteran and have previously been denied benefits related to any condition associated with Agent Orange exposure please call 1-866-529-3537 or locally at either (586) 264-3756 in Metro Detroit; or, (616) 931-3670 in West Michigan.

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October 28, 2014

MIchigan Veteran's Concerned with VA Benefits

Recent headlines indicate that there will be significant changes with the Department of Veterans Affairs (VA). If you are in metro Detroit or the Grand Rapids area, we can help explain these changes.

Many of these changes are caused by the backlog of applications for "service connected" pension benefits and healthcare benefits. A recent article in the Washington Post suggests that the problem not only exists within the Department of Veterans Affairs but extends into the Social Security Administration and other governmental agencies.

Despite the backlog, the federal government through the president's executive order maintains that applications for "non-service" connected benefits, including improved pension and aid and attendance benefits will continue to be processed in a timely fashion.

The executive order entered in 2012 did many things. In addition to reallocating resources within the VA to process new applications for non-service connected benefits, the VA also eliminated the need to file the annual Expense Verification Report (EVR), formerly an annual requirement for continued eligibility.

For now, you can reasonably expect that most non-service benefit applications will be processed in under six (6) months, if they are filed timely, are complete, accurate, and prepared using the services of a Veteran Service Organization (VSO) or accredited agent.

If you need assistance with an application for non-service connected benefits, improved pension benefits, or aid and attendance, our firm can help locate an accredited agent, VSO, or assist you with the application itself for no charge.

Call first, act second. 1 (866) 529-3537.

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February 26, 2014

Understanding Your Military Service Characterization

Are you a military veteran who lives in the Detroit area and have questions about VA Benefits? If so, it is important to understand how your service is characterized because your eligibility for benefits is directly tied to your military service characterization.

Anyone who has served this country in uniform will tell you that they serve with the goal of separating from active duty with an Honorable service characterization. And for a vast majority, this desire stems from none other than the pride of serving our nation with honor. However, apart from the prestige associated with serving with honor, an Honorable service characterization carries with it a vast array of benefits that are lost as the characterization is downgraded. As a former Air Force prosecutor, and a continuing member of the Air Force Ready Reserves, I became intimately familiar with the impact that service characterization can have on a veteran’s ability to collect benefits through the Department of Veteran’s Affairs (VA). The information that follows is designed to explain the various types of service characterizations, while subsequent blog entries will focus on service characterization’s impact on VA benefits and the process of appealing for relief through the Board of Correction for Military Records.

A military member’s separation from active duty will fall into one of the following two categories: 1) Administrative, or 2) Punitive. Within the two categories of separations, each category is further divided into individual service characterizations. Administrative service characterizations include: 1) Honorable, 2) General (Under Honorable Conditions), or 3) Under Other Than Honorable Conditions (UOTHC). Punitive discharges, on the other hand, are characterized by either a Bad Conduct Discharge (BDC) or a Dishonorable Discharge (DD).

To receive an Honorable service characterization, a service member must have met or exceeded the required standards of duty performance and personal conduct expected of members of the Armed Forces. A General service characterization is given to service members whose performance is satisfactory, but is marked by a considerable departure in duty performance and/or the conduct expect of military members. The UOTHC characterization is the most severe form of administrative discharge, and represents a significant departure from the conduct and performance expected of all military members. UOTHC characterizations are typically given to service members convicted by a civilian court, or can be accepted in-lieu of court-martial proceedings at the request of the service member.

Administrative separations make up the majority of military separations and include, among other things, those members who separate following the expiration of their service commitment. However, as alluded to above, some administrative separations are the result of misconduct on the part of the member. For instance, military commanders have the authority to discharge a member for drug abuse, repeated failure to meet military standards (including fitness), a pattern of minor disciplinary infractions, or for the commission of a serious offense. While some of these members will still be separated with an Honorable service characterization, many will be separated with a less favorable characterization. Under Department of Defense regulations, a member being administratively separated from active duty with a recommendation for a General service characterization may be entitled to an administrative board hearing. Specifically, members who have attained the rank of E-5 or above, or who have accumulated 7 years or more of active duty service, are entitled to an administrative board hearing if they so desire. Members with less than 7 years of active duty and below the rank of E-5 are not entitled to a board hearing and can be separated with a General service characterization upon a commander’s recommendation. Members recommended for a UOTHC characterization are board entitled, regardless of rank and length of service, upon election.

Punitive discharges can only be adjudged at a court-martial proceeding. A General Court-Martial has the authority to adjudge either a BCD or a DD, while a Special Court-Martial can only adjudge a BCD. A punitive discharge is considered a form of punishment, but can only be issued to an enlisted service member. If an Officer faced trial by court-martial, an Officer could receive a Dismissal, a separation carrying the same consequences as a DD.

In subsequent blog entries, I will provide more details regarding how each downgrade in service characterization can impact a member’s benefit entitlements.

As always, if you have specific questions about your eligibility for benefits, give the attorneys at Serafini, Michalowski, Derkacz & Associates, PC a call at (866)529-3537, that’s (866)LAW-ELDR.

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