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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February 21, 2014

VA Benefit Increases

Despite the budget battle, the federal government has approved an increase for non-service connected benefits provided by the VA for wartime vets equal to the Social Security annual cost of living adjustment. If you are a Michigan wartime veteran, or a family member assisting a Michigan wartime veteran, it is important to understand Aid and Attendance.

This benefit is designed to provide an opportunity for an aging or disabled veteran to receive assistance to otherwise allow an individual to avoid nursing home care and, or, to age in place. The benefit can be as high as $2,000.00 per month and can be used to pay for in home care, assisted living, and, in some circumstances, senior independent living where care is provided.

If you are a wartime veteran that needs assistance or are a family member of a WWII, Korean War, or Vietnam era veteran, please call to learn more about these benefits. This benefit can be the answer to long-term care.

You may reach our offices in West Michigan and the Metro Detroit Area by dialing 1-866-529-3537 (1-866-LAW-ELDR) or receive a referral to our affiliated Center for Veteran's Planning offices in the greater Kalamazoo and Grayling areas.

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February 14, 2014

VA Benefits for Assisted Living

Detroit and Grand Rapids area veterans may be eligible to receive VA benefits to supplement the cost of their care for either assisted living, independent living with care, or in home care.

Through the Department of Veterans Affairs (VA) non-service connected benefits program aging and disabled veterans that need assistance with two (2) or more activities of daily living may qualify for monthly benefits of put to $2,000.00 per month. These benefits may be used to offset the cost of care by supplementing monthly social security and pension income. Although eligibility for these benefits may be confusing, help exists to those who may qualify. By working with a skilled elder law attorney, it is possible to qualify for benefits.

If you are residing in the metro Detroit area, Grand Rapids area, Kalamazoo area, or are in Northern Michigan and have questions about qualifying for VA benefits for assisted living or in-home-care call SMDA P.C.1-866-LAW-ELDR or 1-866-529-3537.

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February 12, 2014

Detroit Area VA and Elder Law Firm Expands

If you are a loyal listener to WYCD 99.5 in the metro Detroit area, you have probably heard our new advertisements for elder law and VA benefit planning. SMDA P.Chttp://www.smdalaw.com. or Serafini, Michalowski, Derkacz and Associates, P.C. has established itself as one of the premier elder law and long term care planning law firms in the metro Detroit Area.

Our firm specializes in the issues that affect "baby-boomers" and their aging parents. Although it is no secret that we are all living longer, it is sometimes a secret how to enjoy life beyond retirement and still be able to afford care and assistance beyond our golden years. Through estate planning and long term care planning techniques our firm can assist you and your family with providing the best quality of care at the lowest cost possible.

Not only are we able to help those in metro Detroit with their needs; our satellite office in Zeeland, Michigan stands ready to service clients in West Michigan. In addition, we are pleased to announce working relationships with The Law Offices of Grossman & Moldovan, in the Kalamazoo area and northern Michigan through an affiliation with Carey & Jaskowski, P.C. in Grayling, Michigan. Our network of attorneys are able to service clients throughout the state of Michigan,

If you are in Michigan and have elder law questions, VA benefit planning questions, or estate and probate questions, please call (586) 264-3756.

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October 23, 2013

A Michigan Veteran's Perspective on VA Benefits

As the newest member of the team at Serafini, Michalowski, Derkacz & Associates (SMDA), I’d like to take a moment to introduce myself to those who frequently read this blog.

My name is Shane Childers, and I am excited to be a part of a firm with offices in both Sterling Heights and Zeeland, Michigan, that works extensively in the areas of estate planning, elder law, probate and estate administration. And as a former military member, and current member of the Air Force Ready Reserves, I am even more excited about continuing my work with our nations veterans as part of our veteran’s law practice.

My legal career began when I joined the United States Air Force JAG Corp after graduating from law school and passing the bar exam in 2008. As a member of the JAG Corp, I worked in several unique areas of the law. For instance, I served as the Chief of Military Justice at Ellsworth AFB, SD, where I served as the lead prosecutor for military courts-martial. As a prosecutor, I handled a broad array of criminal cases. I also earned a Meritorious Unit Award and an Air Force Commendation Medal for my service while at Ellsworth AFB, which included advising B-1B pilots and squadron commanders on the Law of Armed Conflict and the Geneva Convention while working in support of Operation Odyssey Dawn. However, the most rewarding accomplishments of my military career involved the assistance I was able to provide to many of our nations retired and disabled veterans. And it is with great pride that I will continue my work with our nation’s greatest heroes as a member of the team at SMDA.

Although the Department of Veterans Affairs (VA) is a great organization, it is still a part of the Federal Government and littered with red tape. My own experiences as a veteran have shown me that the VA, though designed to “care for him who shall have borne the battle, and his widow, and his orphan,” is often more focused on trying to dismantle a deserving veteran’s claim for benefits. Similarly, as a military attorney I worked with many veterans who had been wrongfully denied retroactive benefit payments, had been given a disability rating well below what they were entitled to, or had otherwise been given wrong or misleading information by the VA. As an attorney with knowledge of VA laws and regulations, I have been able to help veterans secure benefits they would never have otherwise recovered.

If you or a loved one who served in the military have been denied benefits through the VA, if you are struggling to navigate the VA’s red tape, or if you are otherwise confused about what benefits you may be entitled to, give our office a call. We can help.

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October 14, 2013

Michigan Agent Orange Claims

For decades, our nation’s veterans have fought with the Veteran’s Administration (VA) to secure service-connected disability benefits for conditions believed to be linked to Agent Orange exposure in Vietnam. Many suffered with chronic illnesses caused by the toxic herbicide, but were denied benefits by the VA. However, recent medical studies have established a definitive link between several diseases and exposure to Agent Orange. As a result, new laws were enacted to create a presumptive service-connection for veterans suffering from a listed disease who served in the Republic of Vietnam, Thailand, or the Korea Demilitarized Zone between January 1962 and May 1975.

Vietnam veterans with a listed disease are presumed to suffer from the condition as a result of exposure to Agent Orange. The news laws encourage veterans who were previously denied disability compensation to reapply for benefits. For those claims previously denied by the VA, a finding of service-connected disability for the same condition could result in a retroactive payment of benefits from the date of the original claim. Many of these positive determinations result in substantial back payments. Moreover, so long as the veteran files the claim during his or her lifetime, the claim survives the veteran. Any retroactive payments are then payable to the surviving spouse, heirs, or the estate.

If you or a loved one served in the Republic of Vietnam, Thailand, or the Korea Demilitarized Zone during the Vietnam conflict and suffer from any of the diseases listed below, you may be entitled to substantial compensation from the VA. Call Serafini, Michalowski, Derkacz & Associates, PC today, we can help.

Diseases Associated with Exposure to Agent Orange

• Chloracne or other Acneform diseases consistent with Chloracne
• Type II Diabetes (Diabetes Mellitus or Adult-Onset Diabetes)
• Hodgkin’s Disease
• Multiple Myeloma
• Non-Hodgkin’s Lymphoma
• Acute and Subacute Peripheral Neuropathy
• Porphyria Cutanea Tarda
• Prostate Cancer
• Respritory Cancers (Cancer of the Lung, Bronchus, Larynx, or Trachea)
• Soft-Tissue Sarcoma (other than Osteosarcoma, Chondrosarcoma, Kaposi’s Sarcoma, or Mesothelioma)
• B-Cell (Hairy-Cell) Leukemia
• Parkinson’s Disease
• Ischemic Heart Disease

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February 13, 2013

Can Michigan Independent Living Facilities Qualify?

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.

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December 25, 2012

Do you receive VA benefits in Michigan?

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

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December 21, 2012

VA Benefits Increase

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


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September 25, 2012

Married Couples in Michigan Receiving Medicaid Need To Plan

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.

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September 17, 2012

Michigan Long Term Care Planning for Non Veterans Part 2

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.

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September 10, 2012

Michigan Long Term Care Planning for Non Veterans in Detroit and Zeeland

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.

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