Military Veteran Attorney Blog

Do they, or, don't they? This is a hot topic facing seniors that are veterans who are currently residing in independent living facilities in metro Detroit and West Michigan. The question involves whether or not the costs of living at a senior living community otherwise qualify as un-reimbursed medical expenses under the Veteran's Administration (VA) non-service connected pension benefit regulations.

The regulations that define aid and attendance allow seniors living in assisted living facilities or private duty nursing homes to count their monthly expenses, including rent AND care, as qualified reimbursable expenses. These expenses, more or less, "trigger" eligiblity for aid and attendance benefits.

Traditionally, only "care" expenses were counted as re-imbursable expenses under federal. Rent at independent facilities would not be counted towards qualification for the benefit even if the applicant received services at the facility and could no longer reside at home. These rules are puzzling given that many seniors choose to receive assistance and in senior apartments that is identical to the services and care offered by true assisted living facilities.

A recent internal letter issued by the office of the general consulate finally resolves this issue. Pursuant to this "Fast Letter" it is now evident that the VA will accept costs incurred at senior apartments if an applicant requires assistance with two (2) or more activities of daily living (ADLs) and the applicant is residing in the facility pursuant to a doctor's orders. The end result is that more seniors can qualify for aid and attendance benefits if their cases are properly documented and the expenses for their care are accurately depicted within their application for VA benefits.

If you are a senior residing at an independent care facility AND are a veteran, or you are assisting a loved one with his or her affairs that resides at such a community you may now qualify for benefits.

As always, should you have any further questions regarding elder law issues, long term care planning, VA benefits or nursing home care, please consult with a qualified elder law attorney. If you reside in the Detroit area or West Michigan, please call our office at either (586) 264-3756, or, (616) 931-3670.

If you are a veteran receiving non-service connected pension benefits and/or aid and attendance, the federal government has more good news for you following the announced increase in benefits that we earlier reported.

As must of you know, once you receive non-service connected benefits you must complete the annual report to the VA known as the Expense Verification Report or EVR. If you have ever completed this form you know, firsthand, that it is cumbersome and confusing. Fortunately, due to an administrative change with the Department of Veteran's Affairs, this form may no longer be required to continue your benefits.

The VA has sent out a release that the EVR will no longer be required; instead, they will compare information obtained through cross-checking records from the IRS and other federal agencies.

Even better news, the VA reports that it will allocate its resources normally used to review EVRs will be re-deployed on the growing backlog of new applications for benefits. Hopefully, this means that applicants will receive faster determinations and approvals for benefits.

Although this is welcome news, please be aware that new methods used to verify continued eligiblity, namely reviewing IRS information, may lead to increased examination of eligible veterans already receiving benefits. As a result, it will be highly important to ensure that you are fully eligible to receive benefits at the time you apply.

If you have further questions regarding this post, or any other post, please feel free to call our office at:

Greater Metropolitan Detroit (586) 264-3756
West Michigan (616) 931-3670

Finally some good news from Washington which will mean good news for Detroit veterans receiving VA benefits.

After a few years of no increase to non-service connected pension benefits, the federal government has increased the maximum benefit amounts for veterans receiving aid and attendance. The amount of increase is equal to the 1.7% cost of living adjustment for Social Security.

The numbers for veterans receiving aid and attendance effective January 1, 2012 (provided that the Mayans are wrong) will be:

Married Veteran: $2,054.00
Single Veteran: $1,732.00
Surviving Spouse: $1,113.00

In addition, if you are a healthy veteran but pay care needs for a spouse your benefit can be:

Improved Pension Benefit: $1,360.00

These benefits can be provided for veterans or their spouses that need assistance with either home care, assisted living or private duty nursing home care.

If you have more questions about these benefits, or how to become eligible for these benefits, please call:

Detroit and Metro-Detroit: (586) 264-3756
West Michigan: (616) 931-3670

Are you a senior residing in Macomb, Oakland, Wayne, Ottawa or Kent County and receive Medicaid benefits for your spouse residing in a nursing home?

If so, you need our help. Proposed changes to Medicaid regulations will expose people to the danger of losing benefits or incurring divestment penalties. Michigan Medicaid regulations provide that married couples eligible to receive long term care Medicaid benefits have one year form the date of initial eligibility to transfer all assets, other than the applicant’s primary account, to the well spouse or “community” spouse’s name.

Although this was always the law, the Department of Human Services (DHS) never truly enforced this policy. Proposed changes will require the community spouse to provide proof that assets disclosed on the initial application for benefits that were jointly owned were transferred to his or her sole name. If assets were not fully transferred, then the qualified spouse will become disqualified to receive benefits and will have to re-qualify for Medicaid benefits.

Further, it will also allow the DHS to investigate if assets that were held jointly or solely were “divested” or given away during the first year of eligibility. Assets cannot be divested following Medicaid eligibility. However, assets transferred to the community spouse and transferred after the initial re-determination appear to be exempt form this rule.

These changes are schedule to hit in October of 2012. The best way to avoid Medicaid post eligibility problems is to plan properly with an elder law attorney.

Sound complicated? If so, please call. We can help.

Call first… Act second.

The attorneys at Serafini, Michalowski, Derkacz and Associates, P.C. are ready to help. Serving southeast Michigan and metro-Detroit in Macomb, Oakland, and Wayne County, through its Sterling Heights office; and, west Michigan in Kent and Ottawa County through its Zeeland office.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Are you a senior residing in Macomb, Oakland, Wayne, Ottawa or Kent County and need assistance with long-term care planning, elder law or veteran’s benefits to provide in home care, assisted living, or, nursing home care for yourself or for a loved one?

In my last entry we discussed the use of qualified or retirement assets to: (1) provide an additional “private” benefit to supplement monthly income; and, (2) to protect other non-qualified assets from “spend down” and estate recovery. In this entry we will explore the use of a home’s equity to provide care by supplementing monthly income.

A home with equity can also be used a s a “private benefit” for a senior that is not a veteran and needs assistance to cover the cost of his or her care. Using the equity to create a flow of income like or in place of a monthly VA benefit can create a solution to a long-term care problem.

Through the use of a home equity line of credit or a reverse mortgage, a sum of money can become available to fund an immediate annuity to create an income stream to provide care. In today’s real estate market, a home that cannot be sold or that is undervalued might be better used as a monthly income to provide for care at home. Seniors often fear tapping the equity of a home to provide for their own care. Often times they believe the family wants the home after they are gone or that the bank will foreclose on a home before they pass. This is not the case; if planning is done correctly. Reverse mortgages will allow an individual to continue to reside in home, and, if the outstanding drawn balance is “cured”, in most cases, within eighteen (18) months after the death of the owner than the home remains or reverts to the estate or trust. Or, the home can simply be surrendered to the bank following death if the family does not want the home. Thus, viable options to pay for long-term care can be created through the use of untapped equity in a home.

Sounds complicated? If so, please call. We can help.

Call first… Act second.

The attorneys at Serafini, Michalowski, Derkacz and Associates, P.C. are ready to help. Serving southeast Michigan and metro-Detroit in Macomb, Oakland and Wayne County, through its Sterling Heights office; and, west Michigan in Kent and Ottawa County through its Zeeland office.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Are you residing in Macomb, Oakland, Wayne, Ottawa or Kent County and need assistance with long-term care planning to provide in home care, assisted living, or, nursing home care for yourself or for a loved one?

Often times, we can use veteran’s benefits like aid and attendance or Medicaid to provide solutions to provide you with the best quality of care for the lowest cost possible. Although the solution for most seniors that need home care or assisted living benefits is through veteran’s benefits under aid and attendance, long term care planning can still be accomplished through astute elder law planning using the assets that are available to a senior. Using retirement assets and equity in a home can provide another source to supplement an individual’s regular monthly income to provide for the cost of care that he or she needs.

Families that need a solution to the long-term care problem often overlook retirement assets. Assets like 401(k)s, IRAs, and 403(b)s (known collectively as “qualified assets”)can be used to provide for the cost of in home and/or assisted living care. Qualified assets are taxable at the time money is withdrawn and used by an individual. Despite the tax treatment of distributions, sometimes it is wise to use qualified assets to supplement a retired person’s income to provide for his or her care.

Most financial planners will agree that the least likely asset a beneficiary wants to inherit is a qualified asset. This is because the asset will be wholly taxable to the beneficiary as he or she withdraws form it. Alternatively, if a senior that needs care uses his or her qualified assets, he or she will have a correlating itemized deduction for the care expenses paid. Thus, if these assets are used to provide for care, in order to preserve non-qualified assets (i.e. bank accounts, life insurance policies, and real property), taxes can be effectively hedged and avoided by beneficiaries of an estate.

The other advantage to using qualified assets as a “private benefit” is to engage in Medicaid planning. Michigan Medicaid currently employs a five (5) year look back period. Accordingly, if qualified assets can be stretched to supplement monthly income to collectively satisfy a monthly-long term care expense, other assets can be protected by moving them from the individual’s estate into an irrevocable trust funded at the time the assets are “stretched”. As an example, if an individual requiring long term care at a cost of $3,000.00 per month, has non-qualified assets of about $100,000.00; qualified assets of $60,000.00; a home; and monthly income of about $2,000.00 per month, he or she can create a special trust, move the home and qualified assets into it and sit out the Medicaid five (5) year look back period. This can simply be accomplished by “stretching” the $60,000.00 IRA into sixty (60) monthly payments to create a monthly payment of $1,000.00 that will supplement the regular monthly income of $2,000.00, thus, meeting the monthly care need. At the end of the sixty (60) month period or five (5) years, the assets moved to fund the irrevocable trust have now escaped the Medicaid look back period and estate recovery, in its current form.

In our next entry, we will explore the use of home equity and reverse mortgages to supplement monthly income to provide care and protect assets.

Sound complicated? It should. Please call. We can help.

Call first… Act second.

The attorneys at Serafini, Michalowski, Derkacz and Associates, P.C. are ready to help. Serving southeast Michigan and metro-Detroit in Macomb, Oakland and Wayne County, through its Sterling Heights office; and, west Michigan in Kent and Ottawa County through its Zeeland office.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Are you residing in Macomb, Oakland, Wayne, Ottawa or Kent County? Do you have a loved one or family member residing at a nursing home? Does he or she currently receive benefits from the State of Michigan in the form of long-term care Medicaid for nursing home care?

If the answer is “yes”, you may be exposed to estate recovery. Michigan adopted Estate Recovery, retroactively, for seniors that received Medicaid benefits. Estate Recovery is a law that entitles the State of Michigan to recover assets from an applicant’s estate if he or she received nursing home Medicaid benefits during his or her lifetime.

Although exemptions exist, the common target and biggest asset in an estate is a home. Homes are a protected or “non-counted” asset at the time of Medicaid application, but, now, following death, a home can become a target of recovery. The current statute, which may change, provides that the State may, effectively, lien the home through the probate process.

The law specifically provides that the state can recover up to half the value of a home capped at half of the mean value of a home in the geographic area it resides. Although the law seems to be specific, the Department of Human Services (DHS), and, the state fail to provide guidance in application of the formula to determine value. In fact, a separate independent agency serves as the state’s collection arm.

For now, the collection agency simply mails a questionnaire to assess the value of an estate that may be exposed to estate recovery. The questionnaire is flawed pursuant to creditor/debtor law and probate law, but still must be completed, to some degree.

If you have received a questionnaire or a letter of inquiry, do not panic. Often, the questionnaire will not apply as most homes and assets will escape the probate process through joint ownership, beneficiary designation, or effective estate planning; and, ultimately, will escape estate recovery. But the best advice is still to:

Call first… Act second.

The attorneys at Serafini, Michalowski, Derkacz and Associates, P.C. are ready to help. Serving southeast Michigan and metro-Detroit in Macomb, Oakland and Wayne County, through its Sterling Heights office; and, west Michigan in Kent and Ottawa County through its Zeeland office.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Not only can Serafini, Michalowski, Derkacz and Associates, P.C. provide seniors, veterans and their families with long-term care and benefit planning, it can also provide insight and planning for seniors and their families needing assistance with Medicaid for nursing home care. Moving into the West Michigan area in order to assist families and seniors with their care-giving needs, the firm will provide expert legal advice to solve elder law and other legal problems.

Nursing home planning creates eligibility for Medicaid sooner than otherwise would be available through traditional “spend down” strategies. Money and assets can be preserved even at the time of nursing home admission. For most seniors entering a nursing facility, 50% to 70% of an individual’s assets; and, up to 100% of a married couple’s assets can be protected through effective elder law planning. The key is to find an attorney that is skilled in the practice of elder law to use long term care planning strategies. By planning, families can care for their loved ones and protect their assets to supplement the quality of care and provide for the upkeep and maintenance of a protected homestead.

Serafini, Michalowski, Derkacz and Associates, P.C. provides expertise in elder law, veteran’s benefits, estate planning, probate and other matters. Attorneys are available to serve seniors and their families residing in Ottawa County, and, Kent County through the firm’s Zeeland, Michigan office.

Remember, if you need assistance with veteran’s benefits, Medicaid, or long term care planning...

Call first… Act second.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Serafini, Michalowski, Derkacz and Associates, P.C. can provide seniors, veterans and their families with long-term care and benefit planning. Moving into the West Michigan area in order to assist families and seniors with their care-giving needs, the firm will provide expert legal advice to sole elder law and other legal problems.

Most effective planning begins with estate planning. The key to creating eligibility for aid and attendance, homebound pension, and Medicaid benefits begins with creating “elder law friendly” power of attorney documents. An elder law friendly power of attorney has specific planning clauses that allow a nominated agent to create irrevocable divestment trusts; and, to allow divestment strategies, to protect and preserve assets to supplement the quality of a loved one’s care while preserving eligibility for benefits.

If you are a senior and have existing power of attorney documents, it is important to make sure that they are “elder law friendly” and that they comply with new Michigan law. New Michigan law, effective in May of this year, provides new power of attorney rules that will affect you and your estate planning. If you haven’t had your documents and estate plan recently reviewed, it is crucial that you do it now.

Seniors, veterans and their families living in Grand Rapids, Zeeland, Holland or West Michigan that need assistance with long-term care planning, for assisted living, nursing home and home care now have planning options available to them through our office in downtown Zeeland, Michigan.

Remember, if you need assistance with veteran’s benefits, Medicaid, or long term care planning...

Call first… Act second.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Veterans and their families living in Grand Rapids, Zeeland, Holland or West Michigan that need assistance with long-term care planning, for assisted living, nursing home and home care now have planning options available.

Our firm now offers legal services to the communities of West Michigan through our office in downtown Zeeland, Michigan. Offering expertise in elder law, long-term care planning, Medicaid planning, and, estate planning, our firm has solutions for families struggling to deal with a loved one that can no longer live independently at home.

Through effective planning, veteran’s can use non-service connected pension benefits like aid and attendance, the homebound pension, and, improved pension benefits to help fund the care that they need to improve the quality of their lives. Planning can not only preserve and protect a family’s estate; it can also provide someone suffering from dementia, Alzheimer’s or other catastrophic illnesses with additional income to provide much needed care.

Dedicated to serving the West Michigan community; and, Ottawa and Kent County, Serafini, Michalowski, Derkacz and Associates, P.C. will offer the same service our clients in Macomb County, Oakland County, Wayne County, and, Metro-Detroit have enjoyed.

Remember, if you have a legal problem and need help….

Call first… Act second.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

We are proud to announce that we have moved into west Michigan to serve west Michigan veterans and the west Michigan senior community.

Serafini, Michalowski, Derkacz & Associates, P.C. now has an office in beautiful downtown Zeeland, Michigan located at 109 Main Street, Suite 6, Zeeland, Michigan. Serving Kent County and Ottawa County, veterans, seniors and others can now get the help that they need with:

• Elder Law – Veteran’s benefit planning, Medicaid and nursing home planning, long-term care planning, estate planning, and, probate matters.

• Family Law – Divorce, and, child custody matters.

• Long Term Disability – Assistance with ERISA matters, and, long term disability claims.

• Personal Injury – Auto accidents, no-fault claims, slip and fall, and other personal injury claims.

• Business Planning – Creating a corporate entity and business consulting.

Dedicated to serving the west Michigan community; Ottawa County and Kent County, Serafini, Michalowski, Derkacz and Associates, P.C. will offer the same service our clients in Macomb County, Oakland County, Wayne County, and, Metro-Detroit have enjoyed.

Remember, if you have a legal problem and need help….

Call first… Act second.

Free consultation, by appointment only, (586) 264-3756, (616) 931-3670, or, 1 (866) 529-ELDR.

Following the recent topic of discussion regarding proposed Senate Bill S.3270 and Veteran Benefits, I have more thoughts on the proposed divestment penalty for veteran benefits.

As an elder law attorney working with veterans in the Detroit area, we strive to keep veterans informed of changes to federal law that may affect their benefits. This new bill will impact future claims for improved pension benefits, including aid and attendance (A&A) benefits.

The proposed bill will change an important aspect of benefit planning known as the "look-back" period. Current law only provides that transfers made prior to application must be disclosed if the transfers will retain ownership or income rights to the applicant. New law will strictly enforce a "divestment penalty" for all transfers made prior to application.

The maximum penalty will be three years of ineligibility form the date of transfer. The current form of the bill provides a penalty period calculated by dividing the amount of the transferred resource by the value of the benefit the applicant seeks.

As an example, if a resource is transferred to create eligiblity is worth $100,000.00 and the applicant is a single veteran seeking a maximum A&A benefit of $1,703.00, the resulting penalty will be 58 months. But, since the maximum penalty will be three years (36 months), the penalty will be capped at 36 months.

The creation of the "look-back penalty" will provide a fantastic opportunity for seniors veterans seeking this benefit to creating effective long term care plans by working with qualified financial planners and elder law attorneys.

If you would like more information about this topic, please call for a free consultation.

(586) 264-3756