Military Veteran Attorney Blog

It is important to understand the interplay between the Veteran's Administration (VA) Aid and Attendance (A&A) Benefits and state Medicaid law.

Clients often come to our office in Sterling Heights after hearing about the A&A benefit through seminars organized by financial planners. Seminars in Southeast Michigan are becoming more and more common place as insurance agents and planners learn that eligibility for such benefits can be created through the use of careful financial planning.

Although seminars can provide valuable information to veterans, an attendee should exercise caution prior to working with a planner to apply for such benefits. Prior to working with a planner, a potential client should perform his or her own due diligence by asking the planner a few simple questions:

1. Do you also practice Medicaid financial planning?

2. Do you have a relationship with a Service Organization?

3. Do you have an existing relationship with an elder law attorney?

4. What is your commission in assisting with my planning?

These questions will shed light on the planner's intentions and whether or not he or she truly has the best interests of the client in mind. If the planner is unable to answer these questions, the potential client should consult with an elder law attorney that is skilled in the areas of VA benefits and Michigan Medicaid law.

Because federal law currently does not provide a "look-back" period for A&A eligibility there is an incentive for planners to earn commissions by funding financial products owned by people other than a veteran seeking A&A benefits. This strategy can be catastrophic if the planner is not well versed in state Medicaid law.

Conversely, current federal law provides that a Medicaid applicant is subject to a five (5) year "look-back" period. This audit period is designed to identify gifts, transfers, or "divestments" made within five (5) years of an individual's application for Medicaid benefits. Any such transfers will result in periods of ineligiblity to receive Medicaid benefits even if the applicant is otherwise qualified to receive nursing home benefits from Medicaid. As a result, transfers made for A&A eligiblity can disqualify an applicant from receiving Medicaid benefits for later nursing home care.

However, through prudent planning an individual can avoid this pitfall. Prudent planning can be accomplished by working with a team of advisors which should include an elder law attorney, CPA, and a financial planner well skilled in Medicaid and VA planning that also has an affiliation with a veteran's service organization.

As always, if you are a resident of Metro-Detroit and are looking for legal advice feel free to contact our office for a free consultation at (586) 264-3756 or via the internet through our website: www.smdalaw.com.

Remember, "Call first... Act second!"

Our firm is pleased to announce that we have partnered with Spartan Nation as a sponsor of Michigan State University related news regarding Spartan Athletics.

Through our sponsorship, we have become the "Official Law Firm of Spartan Nation". Spartan Nation is a media source created by its founder, Hondo Carpenter, Sr.

If you are an MSU alumnus or have a family member enrolled at MSU, please mention your connection when making your appointment to receive a courtesy discount on professional services.

On October 13, 2009, VA Secretary Shinseki decided to establish service connection for Vietnam veterans with three conditions; Parkinson's, B cell leukemias, and ischemic heart disease. These join the already established conditions

In the case of a surviving spouse, either the veteran's death certificate should list one of these presumptive diseases as cause of death OR the cause of death must be linked to one of these diseases.

The decision to add these three new conditions was based on scientific evidence linking these conditions to exposure to Agent Orange, an herbicide sprayed in Vietnam. As in all other conditions, the VA typically requires proof of "boot on the ground" in most cases or proof of direct exposure to Agent Orange.

Please note that on November 2nd, the National Veterans Affairs and Rehabilitation Commission released a bulletin stating that the VA instructed its regional offices to stay the adjudication of all claims seeking presumptive service connection related to the three new conditions pending the introduction of final regulations into the Federal Registry. However, veterans (and surviving spouses) who would qualify for these benefits are urged to go ahead and submit a claim to help lock in a retro-active payment date.

Although many of you are, or can become, eligible for Non-Service Connected Pension Benefits (most commonly, Pension plus Aid & Attendance), there are many who would be better off applying for Service Connected Compensation. However, in order to ascertain which benefit would be best for you, one must fully understand SC compensation benefits.

Unlike NSC pension claims, there is no asset or income limitation for SC compensation (with the exception of a parent's claim). For this reason, it may be possible to still obtain benefits for those clients with excessive assets who would not qualify for pension.

For veterans who are already receiving SC compensation, one should look at the rating of the disability and the amount that the veteran is receiving.

The general rule of thumb is: If the veteran is rated 85% or more and is receiving close to or more than pension would pay, the veteran should at least consider filing for an increase in SC compensation over pension.

Even in cases where the veteran is rated 100%, it may be possible to get additional VA money in the form of Special Monthly Compensation (SMC).

Veteran compensation claims generally take longer to process than pension claims; therefore, when in doubt, it may be best to apply for pension for those eligible veterans. Once the pension is awarded, the veteran can always submit a second claim for compensation and if approved, the VA will award whichever claim pays the most.

Unfortunately, the sting of our economy in Detroit, with the struggles of the automotive industry, has reached beyond individual consumers and into seniors' pocketbooks. With the increase in unemployment, foreclosures and other difficult times, the Michigan State Department of Human Services (DHS) and the Attorney General have noticed a correlation in elder abuse. Not physical or mental abuse; but, financial abuse.

Most commentators agree that the best way to avoid access to joint accounts or misuse of funds is to establish an effective long term care plan that includes estate planning documents that contemplate planning for disabilities or governmental benefits. By working with an accredited individual or an elder law attorney you can put together the best defense possible against elderly financial abuse.

In todays Detroit News, I came across a great article on point. The article can be found here, or I have included it as an excerpt to this post.

Continue reading "Metro Detroit Hardships Lead To An Increase In Senior Abuse" »

After a relative dies, the last thing grieving family members may expect are calls from debt collectors asking them to pay their loved one’s outstanding debts. According to the Federal Trade Commission (FTC), the nation’s consumer protection agency, a surviving relative usually has no legal obligation to pay the debts of a family member who has died. In fact, the rights of surviving relatives are covered by the Fair Debt Collection Practices Act (FDCPA), which prohibits debt collectors from using abusive, unfair, or deceptive practices to collect from you.

Under the FDCPA, which is enforced by the FTC, a debt collector is someone who regularly collects debts owed to others. This includes collection agencies, lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them.

Here’s what the law has to say about who has responsibility for a dead relative’s debts.

Who is responsible for paying the debts of a relative who has died?
Generally, someone’s estate is responsible for paying their debts. But if there isn’t enough in the estate to cover the debts, they typically go unpaid.
Am I am legally obligated to pay the debts of a deceased relative?
You usually don’t have a legal obligation to pay the debts of a deceased relative who was not your spouse. Even a spouse’s obligation to pay may be limited under state probate law. To determine whether you’re legally obligated to pay, talk to an attorney who is knowledgeable about this area of the law.

What should I do if a debt collector contacts me about a debt of a relative who has died?

Give the debt collector the contact information of the decedent’s personal representative. That’s the person responsible for settling their affairs, including paying any outstanding debts from the estate. If there is a will, the personal representative is known as the executor; if there is no will, the personal representative is known as the administrator.

Don’t give any of your personal information, like your Social Security number, birth date, or financial account numbers to anyone unless you know who you’re dealing with. Some con artists may check obituaries and other legal notices, and then contact relatives of a deceased posing as debt collectors. These scam artists can use your personal information to help them commit identity theft or other types of fraud.

Do I have to speak with a debt collector who contacts me about the debts of a deceased relative?

No. But if you’re a decedent’s personal representative, or otherwise legally obligated to pay the debt, you may want to talk with the debt collector to see if you can resolve the matter.

Can I stop a debt collector from contacting me about the debts of a deceased relative?

Yes. If you decide that you don’t want a debt collector to contact you again, write a letter to the collector saying so. Then, make a copy of your letter, send the original by certified mail, and pay for a “return receipt” so you will be able to document what the collector received and when. Once the collector receives your letter, they may not contact you again, with two exceptions: a collector can contact you to tell you there will be no further contact and to let you know that they or the creditor plan to take a specific action, like filing a lawsuit. Remember that even though the collector is prohibited from contacting you again, they still may sue the estate of your relative or the legally responsible person to collect the debt.

Can debt collectors tell anyone else about my dead relative’s debt?

Other than to get the personal representative’s location, a debt collector generally is not allowed to disclose your relative’s debt to anyone other than the deceased’s spouse, parent (if your relative is a minor child), or guardian.
For Complaints and More Information

Report any problems you have with a debt collector to your state Attorney General’s office (www.naag.org) and the Federal Trade Commission (www.ftc.gov). Many states have their own debt collection laws that are different from the federal Fair Debt Collection Practices Act. Your Attorney General’s office can help you determine your rights under your state’s law.

For more information about debt collection and the additional rights provided under the FDCPA, see Debt Collection FAQs: A Guide for Consumers at ftc.gov/credit.

For information on other credit-related issues, visit www.ftc.gov/credit and www.MyMoney.gov, the U.S. government’s portal to financial education.

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

After a relative dies, the last thing grieving family members may expect are calls from debt collectors asking them to pay their loved one’s outstanding debts. According to the Federal Trade Commission (FTC), the nation’s consumer protection agency, a surviving relative usually has no legal obligation to pay the debts of a family member who has died. In fact, the rights of surviving relatives are covered by the Fair Debt Collection Practices Act (FDCPA), which prohibits debt collectors from using abusive, unfair, or deceptive practices to collect from you.

Under the FDCPA, which is enforced by the FTC, a debt collector is someone who regularly collects debts owed to others. This includes collection agencies, lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them.

Here’s what the law has to say about who has responsibility for a dead relative’s debts.

Who is responsible for paying the debts of a relative who has died?
Generally, someone’s estate is responsible for paying their debts. But if there isn’t enough in the estate to cover the debts, they typically go unpaid.
Am I am legally obligated to pay the debts of a deceased relative?
You usually don’t have a legal obligation to pay the debts of a deceased relative who was not your spouse. Even a spouse’s obligation to pay may be limited under state probate law. To determine whether you’re legally obligated to pay, talk to an attorney who is knowledgeable about this area of the law.

What should I do if a debt collector contacts me about a debt of a relative who has died?

Give the debt collector the contact information of the decedent’s personal representative. That’s the person responsible for settling their affairs, including paying any outstanding debts from the estate. If there is a will, the personal representative is known as the executor; if there is no will, the personal representative is known as the administrator.

Don’t give any of your personal information, like your Social Security number, birth date, or financial account numbers to anyone unless you know who you’re dealing with. Some con artists may check obituaries and other legal notices, and then contact relatives of a deceased posing as debt collectors. These scam artists can use your personal information to help them commit identity theft or other types of fraud.

Do I have to speak with a debt collector who contacts me about the debts of a deceased relative?

No. But if you’re a decedent’s personal representative, or otherwise legally obligated to pay the debt, you may want to talk with the debt collector to see if you can resolve the matter.

Can I stop a debt collector from contacting me about the debts of a deceased relative?

Yes. If you decide that you don’t want a debt collector to contact you again, write a letter to the collector saying so. Then, make a copy of your letter, send the original by certified mail, and pay for a “return receipt” so you will be able to document what the collector received and when. Once the collector receives your letter, they may not contact you again, with two exceptions: a collector can contact you to tell you there will be no further contact and to let you know that they or the creditor plan to take a specific action, like filing a lawsuit. Remember that even though the collector is prohibited from contacting you again, they still may sue the estate of your relative or the legally responsible person to collect the debt.

Can debt collectors tell anyone else about my dead relative’s debt?

Other than to get the personal representative’s location, a debt collector generally is not allowed to disclose your relative’s debt to anyone other than the deceased’s spouse, parent (if your relative is a minor child), or guardian.
For Complaints and More Information

Report any problems you have with a debt collector to your state Attorney General’s office (www.naag.org) and the Federal Trade Commission (www.ftc.gov). Many states have their own debt collection laws that are different from the federal Fair Debt Collection Practices Act. Your Attorney General’s office can help you determine your rights under your state’s law.

For more information about debt collection and the additional rights provided under the FDCPA, see Debt Collection FAQs: A Guide for Consumers at ftc.gov/credit.

For information on other credit-related issues, visit www.ftc.gov/credit and www.MyMoney.gov, the U.S. government’s portal to financial education.

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Today I appeared on the "Ask Your Neighbor" radio show with Bob Allison. The topic that we discussed was the use of estate planning documents for disability and long term care planning. You can listen to the segment on the 690 am website.

Among the highlights that we discussed were the use of power of attorney documents to engage in Medicaid planning and VA benefit planning. Like my last post, we discussed the importance of establishing power of attorney documents prior to the onset of illness. These documents are important as they can allow your designate attorney-in-fact to preserve resources and accelerate the qualification process for Medicaid.

Next week, I will be discussing the A & A benefit in more detail. Tune in if you would like or call our office! (586) 264-3756

Often times, I will work with families that are crisis planning. What does this mean?

I define crisis planning as planning by a family that is in the process of assisting a loved one with an illness, injury, or disease. In Michigan, especially in Metro-Detroit, it is difficult to get the right information to assist these clients timely. All to often, clients receive misinformation or flat out wrong information from their neighbors, friends or nursing home personnel that do not understand Medicaid regulations or Michigan law.

As a result, clients will often lose assets or funds that could be better used supplementing their loved one's care or assisting with other financial burdens like the upkeep of a home or providing economic means for the other parent or spouse living at home. Therefore, the best advice that you can provide anyone in a nursing home situation, is to seek the advice of a qualified elder law attorney. Our office offers free consultations and can provide important information to assist a family in crisis.

The easiest way to avoid crisis planning is to plan ahead. Using Michigan's estate planning and probate laws to your advantage, you can enact certain strategies by simply updating your estate plan. Michigan law allows you to avoid living probate, guardianships and conservatorships, by executing power of attorney documents. Power of attorney documents, both a general durable power of attorney and medical power of attorney, can be effective disability planning tools that will allow your family to unlock your assets and engage in Medicaid or VA benefit planning, if these documents are drafted correctly. In order to determine if these documents are drafted correctly, you should have them regularly reviewed by an attorney specializing in elder law. As a rule of thumb, I suggest that you review your general durable power of attorney to make sure that:

* It is effective upon signing
* It appoints successor agents
* It has specific clauses related to benefit planning
* It is not "stale"

If you have specific questions regarding your power of attorney documents, or if you do not have these documents in place, call our office for help. Drafting these documents is a simple process and often can be done at a very reasonable price.

You can reach our office at (586) 264-3756.

The State of Michigan sponsored VA advocate and mediation will be defunct as of May 15, 2009.

Gov. Granholm disbanded these service centers as part of the budget reduction. This means that if you have a question about VA services, benefits, etc. you must go through the Federal system of the VA to get an answer.

There are "independent" organizations who will continue to help veterans, families of veterans, attorneys, etc navigate the VA system.

Unfortunately, individuals may get lost in the shuffle as the State looks at ways to balance its budget. The bottom line...helping disabled veterans has just gotten harder to achieve and more complicated, you may always contact our firm for assistance. As an accredited attorney, I can assist with your claims, appeals and provide you with information that you may need to help yourself or family with VA benefits.

Below is a copy of the link to the legislation cutting these services in Michigan.

EXECUTIVE ORDER No.2005 - 5
DEPARTMENT OF MILITARY AND VETERANS AFFAIRS
ABOLISHING THE STATE MILITARY BOARD
EXECUTIVE REORGANIZATION

If you live in Michigan and have questions about estate planning, VA benefits and/or Medicaid planning, tune in to AM 690 WNZK and listen to the "Ask Your Neighbor" radio show hosted by Bob Allison. I appear as a special guest every Friday morning from 9:00 am until 9:30 am to cover estate planning, probate, medicaid planning, VA benefit planning and other legal topics. I am also pleased to announce that we will be working with Towne Centre Financial, located in Warren Michigan to assist their clients with all of their legal needs.

Today I discussed the "ins" and "outs" of Trusts. Next week we will be specifically targeting the use of Medicaid benefits for long-term care planning. This week we identified the advantages to incorporating a living trust into your estate plan.

Next week I hope to discuss the basics of using trusts and other estate planning documents to accomplish long term care planning goals.

If you have questions feel free to call our office at (586) 264-3756.

I am excited to announce that I will be appearing on the "Ask Your Neighbor" radio show, every Friday morning, to discuss legal and elder law topics.

Bob Allison, the host of the show, has been a local Detroit radio icon for over forty (40) years. Ask Your Neighbor, can be heard Monday through Friday from 9:00 am to 11:00 am on 690AM. Our firm will serve as a special guest host every Friday from 9:00 am to 9:30 am. If you would like more information about the topics I discuss on this blog, feel free to tune in and call in for some practical advice.

Next week, Kristina Barsch will be discusing Special Needs Trusts and Estate Planning.