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!"

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.

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 are interested in learning more about the topics that I have discussed on this site and live in the Howell area, I will be presenting a seminar at the Oakhaven Manor Senior facility in Howell, Michigan on Friday April 3, 2008. All are welcome to attend.

For more information please feel free to contact Amanda at: (517) 548-9870.

Oakhaven Manor is located at:1320 Ashebury Lane, Howell, MI 4884.

We will be discussing the use of the Aid and Attendance benefit to assist seniors with their housing choices. In addition, I plan on discussing Medicaid and estate planning concepts that are crucial to understand in order to plan for this great benefit.

Hope to see you there!

Frequently, veterans that are residents of Macomb County who need assistance will consider applying for Medicaid benefits in addiiton to VA benefits. If you or your family fall into this category, it is important to understand the interaction between the different care systems as well as the differences in application of federal and state regulations.

Michigan Medicaid benefits fall into two categories: community based; and, long term care benefits. For the purposes of this discussion, we will consider long term care benefits. In order to qualify for this benefit, you must be: (1) over 65 and confined to a long term care facility; (2) be asset eligible; (3) be medically eligible; and, (4) reside at a facility that is certified to receive Medicaid benefits. In addition to this criteria you must also be free of any divestment penalties. Most people know this rule as the five (5) year "look back" period--and few actually understand what it means.

Pursuant to Medicaid regulations a divestment penalty is incurred for any transfer of an asset by an applicant for less than fair market value. This includes any sale of an asset for less than it is worth, any gift of an asset, or any other transfer in title to an asset. The resulting affect of such events is a one month penalty of ineligibility for every $6,300.00 of value transferred. The resulting penalty would begin to "run" when the Medicaid applicant is otherwise eligible to receive Medicaid benefits. While Medicaid has a "look back" period, the VA system does not. In fact, federal regulations provide that gifted assets prior to application for benefits should not be considered as part of the approval assets. However, any gifts made prior to application for VA benefits will trigger Medicaid penalties, if nursing home care occurs within five (5) years of the transfer. Accordingly, if you engage in Medicaid or VA planning it is important to work with an accredited individual that understands both Medicaid law and VA benefit planning, in order to avoid costly errors.

Finally, it is also important to understand that once a veteran or his or her spouse becomes eligible to receive Medicaid benefits in a nursing home, his or her VA aid and attendance benefits will be reduced to the amount of ninety (90) dollars a month. This is because the Aid and Attendance benefit is intended to provide a benefit to essentially keep a veteran out of a nursing facility. The benefit is more or less designed to provide supplemental income for veterans that require help and assistance and not necessarily 24 hour care. However, despite its limitations, if the proper planning is performed, it is possible to use the benefit to provide care, similar to the care that is provided at nursing homes, in assisted living facilities and senior independent living facilities that offer health care and assistance. In metro Detroit, veterans can find such care in several different facilities. In Sterling Heights and Macomb county, veterans will frequently look at moving into Pine Ridge, American House, or Oak Haven facilities.

Often times I meet with veterans that are already receiving service related benefits in the form of disability benefits. It is important to understand that often times if you are already receiving disability benefits it is not likely you will be eligible to receive improved pension benefits, notably, aid and attendance benefits.

Here is an example. I recently met with a Sterling Heights family that was encouraged by a financial planner to apply for VA benefits by moving to a senior living center in Macomb county. The planner failed to realize that the veteran already was receiving a military disability pension for injuries sustained in WWII which later manifested after he retired. The veteran, according to the VA was 100% disabled. As a result, he was already receiving approximately $2,900.00 per month as a service related pension benefit--far more than the maximum allowed A & A benefit of $1,900.00 per month. Due to the design of VA benefits, this veteran was unable to collect additional benefits in the form of aid and attendance. As a result, the family is barely getting by with the cost of upkeep of their home and their monthly costs at the senior living facility.

Had the family worked with an accredited advisor or done some simple research, they could have avoided this problem and engaged in a different type of planning to ensure that they could receive the greatest care possible and yet preserve their assets to supplement their lifestyle or their quality of care.

If you are a veteran and are considering applying for benefits, make sure that you seek the advice of a qualified elder law attorney that also has expertise in VA benefit planning, or is also accredited with the VA.

Often times when I work with clients in Metro-Detroit interested in long term care planning clients are often interested in engaging in planning for VA benefits, but are unaware of the consequences involved with regard to Medicaid benefits should their health decline necessitating a move to a nursing home.

In order to qualify for VA benefits, some clients often transfer their assets to their children or into a special type of trust, at the direction of a financial planner or other "adviser," to preserve their assets; and, yet qualify for benefits. Frequently, such "advisers" are so focused on qualifying for VA benefits that they often ignore the legal, tax or Medicaid consequences of performing such planning. This often results in added legal expenses to effectively "undo" the planning that was done to qualify for VA benefits and to qualify for Medicaid benefits for the nursing home care that the person now requires.

The solution is to engage in a plan that contemplates additional benefit planning in the future. This can be accomplished by working with an elder law attorney that has knowledge in both areas--VA planning and Medicaid planning. Often times documents and planning can be performed to quickly change gears from VA planning to Medicaid planning without missing a beat or incurring additional costs.

The Department of Veterans Affairs, formerly the Veterans Administration and still commonly referred to as the "VA," is the second largest Cabinet department reporting to the executive branch of our government, with over 275,000 employees and a $90 billion budget. Despite its size, the VA does run an efficient office; however, most people learn that its size will often lead to long delays and confusion.

Divided into 3 business units, the VA is made up of the Veterans Health Administration, the National Cemetery Administration and the Veterans Benefits Administration. Veterans health care is often lauded as the best available and the national cemeteries honor our service men, women and families remarkably well.

Despite the apparent simplicity of the process, American military veterans who apply for compensation and pension benefits often end up angry, dazed and confused long before any benefits are received. Two important causes of the anger and confusion are (1) the long and growing delays in resolving claims and (2) the seemingly endless layers of rules, regulations, and practices that as often as not act as barriers to properly resolving claims rather that the guides for obtaining an award that they were intended.

Often I will meet with veterans that hear about benefit planning but have received misinformation regarding the benefits or believe that they have to actually retire or disabled through service to receive benefits. This is not the case. The VA offers several different benefit programs which can be easily obtained by a veteran through proper planning with the assistance of an accredited individual.

If you would like more information about benefits that may be available to you, and you live in the Metro-Detroit area, please contact our office .

The holidays are often a good time to evaluate long term care options. Often, I receive phone calls from children who after visiting with their parents over the holidays realize that that they need more assistance at home or that mom and dad are not doing as well as they thought. Or after self evaluation and goal setting for the new year, some seniors want to move to senior residences to have more social activities and less responsibility with their homes. If you have a loved one or are someone facing these situations, VA benefits can offer a great planning opportunity.

In the metro-Detroit area, there are several assisted living and senior independent living facilities that are familiar with the VA aid and attendance program. In fact, many facilities will provide prospective residents with materials regarding VA benefits in order to help offset the monthly living expenses at their facilities or to prolong a resident's stay at the facility after his or her funds are exhausted.

The aid and attendance benefit will provide additional monthly income to supplement seniors that need assistance and live in such facilities. This benefit can be the bridge between a qualified veteran's regular monthly income and his or her monthly rent and medical expenses.

For example, if you are a qualified veteran and earn about $1,500 per month with monthly living expenses and medical expenses at a senior facility, you will more than likely receive assistance from the aid and attendance program. The benefit is designed to offer a dollar for dollar match for medical expenses. In most cases, a qualifying veteran will receive the maximum monthly benefit of about $1,600.00 per month. If you would like more information about VA benefit planning, please contact a qualified attorney or a qualified service organization like the American Legion or VFW.

Each year, the VA increases the pension benefit amounts consistent with the cost of living adjustment recognized by the social security administration. For your convenience I have included the projected 2009 pension amounts. The amounts depicted include all benefits provided through the VA improved pension program which includes Aid and Attendance; Improved Pension; Low Income Pension and Accrued Benefits. If you have specific questions about these benefits, feel free to contact our office, especially if you or your loved one resides in Michigan.

Continue reading "VA Releases New Pension Rates" »

Most veterans, in Michigan, are aware that the Department of Veteran's Affairs (VA) provides benefits to those who suffer from "service" related injuries, illnesses, or disabilities. However, most veteran's are unaware that the VA also provides "pension" benefits. Pension benefits are benefits provided to veterans that suffer from non-service related injuries, illnesses, or disabilities. These benefits can be provided to veterans based on criteria that are surprisingly easy to meet for most veterans.

The classification of these benefits is almost a misnomer in itself. Most believe that to qualify for pension benefits a veteran must retire from active service or see combat duty. This is not the case. In fact these benefits are rather loosely related to military service.

The minimal required qualifications required to become eligible for these benefits include:

* Service in the United States Armed forces for a period of at least ninety (90) days
* One day of service during a defined period of conflict (not actual combat)
* A medical need or income need

Of course there are other requirements which may be better explained to veterans by individuals accredited with the VA; service organizations; or a qualified Michigan elder law attorney.

Following a significant change to federal law in regard to applying for Veteran's benefits, your adviser must be accredited with the Department of Veteran's Affairs in order to assist you with your claim for benefits.

In July of 2008, the Department of Veteran's Affairs mandated that any individual representing a veteran pursuing VA benefits must be accredited with the VA in order to further a claim on behalf of the veteran. As a result, financial planners, attorneys and others have begun the accreditation process. This is important to understand here in Michigan as most veterans first learn of these benefits through non-accredited sources.

If your adviser is not accredited, there are alternatives. Pursuant to federal law a claimant may: (1) represent himself or herself directly; (2) seek assistance through a Veteran Service Organization that is accredited through the VA (American Legion, the Disabled American Veterans, the Veterans of Foreign Wars, or State VA offices) 38 CFR 14.628; (3) an individual who has been accredited by the VA; (4) a "one time" power of attorney person, who is usually the child or relative of the claimant ,38 CFR 14.631; (5) an attorney in good standing with the State Bar and has been accredited by the VA, as of June 23, 2008 38 CFR 14.629.

If you are a claimant in Michigan, particularly in the metro-Detroit area, seeking VA benefits, it is important that you seek the advice assistance of an accredited individual or a qualified service organization. Our office can help, in July, I took the necessary steps to become accredited with the VA.

Some advice on selecting an adviser:

Always ask your adviser if he or she is accredited

Seek the assistance of an accredited attorney (most qualified attorneys normally have experience with other aspects of benefit planning, including elder law an Medicaid planning and can offer assistance to those in regard to using VA Benefits for long term care planning).

Contact your local Veteran's service organization

Contact our firm, Serafini, Michalowski, Derkacz & Associates, P.C.