Military Veteran Attorney Blog

I would like to thank James Kelley, a University of Missouri law student, for providing us with the following post.

After their service, veterans of the U.S. Armed Forces are entitled to a number of benefits. Common benefits include service-connected disability compensation, VA-provided health care, the VA Home Loan program, educational assistance, and Aid and Attendance Allowance. Some benefits, like VA home loans, come with a guarantee to lenders that give military homebuyers a chance to fully finance their homes. Outside of approving a Certificate of Eligibility and sending out a VA approved appraiser to determine the value of the home, the Dept. of Veterans Affairs has very little to do with this sort of benefit.

But in order to put other benefits to use, veterans must file specific claims with the VA. It is well known that the VA must determine the average loss in wages due to diseases and injuries that are related to service for veterans to receive disability compensation. As for health care, the VA offers health insurance, known as CHAMPVA, through the Veterans Health Administration. GI Bill benefits vary for each veteran, but they may include payment of tuition, stipends for books, and the Yellow Ribbon benefit.

Aid and Attendance Allowance (A&A) is another benefit that consists of general pay to veterans, spouses and parents. A&A allowance is included in all compensation, pension programs, and dependency and indemnity compensation (DIC). For veterans, the VA makes the decision on how much to award based partly on the veteran’s need for another person’s aid. The VA also considers the frequency by which the person provides that aid to the veteran. Receiving A&A may qualify a veteran for Special Monthly Compensation (SMC), which is paid in lieu of or added to combined degree compensation. Surviving spouses or parents may be entitled to A&A if they require aid from another person and were dependent on a deceased veteran.

Continue reading "Appealing a VA Claim" »

Significant changes have occurred within the Department of Veteran's Affairs that may affect your ability to receive VA benefits if you are a Vietnam era veteran that suffers from certain conditions.

Certain diseases and conditions are now viewed as presumptive illnesses related to the conditions Agent Orange (a herbicide used during the Vietnam Conflict) exposure.

Ischmenic heart condition, Parkinson's disease, and hairy cell and other "B" cell leukemias have now been added as presumptive to Agent Orange.

This means that if a soldier had his/her boot on the ground (or served on certain ships) at any time from January 9, 1962 thru May 7, 1975 and either has (or died of ) one of these presumptive conditions, there is a potential service connected compensation claim for the veteran or a service connected DIC claim for the surviving spouse, dependent child, or parent because the condition or death is presumed to have been caused by exposure to Agent Orange. In addtion, a soldier who served on the Korean DMZ during the Vietnam Conflict may also be eligible, even though he was not actually in the country of Vietnam.

These are all combat related conditions, which also opens up the possibility of Combat Related Special Compensation (monetary) benefits from the Department of Defense for those retired military Vietnam veterans who are suffering with these conditions.

Please remember that one can go back on prior spouses for DIC and it may also be possible for a parent of a single soldier/veteran who died service connected to file for DIC, regardless of that parent's age or when the soldier/veteran died.

The VA is currently going back and re-opening hundreds of thousands of claims and attempting to contact both veterans and survivors to see if benefits are owed.

If you are a veteranresiding in souteast Michigan or the Metro Detroit area and suffer from conditions that are related to Agent Orange exposure, and have legal questions, please feel free to contact us.

If you are a veteran in Michigan and expecting a raise or increase in benefits, you may be waiting another year.

VA benefits generally follow the same trend as Social Security benefits. For those of you who don’t know, Social Security benefits will have no increase for 2011. Therefore, it is probably likely that there will not be an increase in VA benefits for 2011.

This obviously touches the lives of many. The Obama administration has proposed almost a 10% increase in funding for the Department of Veteran Affairs, but it is not clear that this will mean any across the board increases in VA benefits in 2011. Much of the $125 billion requested has been allocated to try and address veteran homelessness as well as mental health issues.

President Obama is also interested in overhauling the system used for VA benefits to make it sustainable going forward.

Perhaps an encouraging sign is that Congress is currently considering mailing out a $250 check to all 58 million Social Security recipients. The $250 check is an attempt by Congress to make up for the lack of an increase in 2011.

Of course if you are a veteran or have a loved one that is and have questions, please contact our office.

Often times, as I meet with clients, I learn that a client has attempted to do their own estate planning. While Michigan law allows for holographic wills (a Will written and executed by an individual in their own handwriting) there are certain complexities that remain with estate planning in Michigan.

In fact, the biggest error that I routinely see is the failure to address "living probate", by a "Do It Yourself Estate Planner". As you may be aware, Michigan law allows for two type of probate: (1) living probate; and, (2) probate of the Estate. As most people try to avoid the probate of an estate after death, they often ignore avoiding probate in the event of a disability.

Simply stated, if you become disabled and are unable to handle your own affairs and have NOT made arrangements by executing power of attorney documents, your family will be forced to seek a guardianship and conservatorship in Probate Court.

This is because, in addition, to having authority of decedent's estates, the probate court has exclusive jurisdiction (authority) over the matters of an incapacitated person. Although a guardian and conservator will have authority over the affairs and decisions of a disabled person, Court involvement is often expensive, restrictive and time consuming. Fortunately, for those who plan with an attorney, probate can be avoided at the time of incapacity and death.

Michigan law provides us with tools to avoid both forms of probate. Living probate can easily be avoided by executing power of attorney documents. A general durable power of attorney allows an individual to appoint someone else to handle his or her day-to-day affairs and manage his or her finances. A medical power of attorney allows an individual to appoint someone to handle his or her medical decisions in the event of disability.

Power of attorney documents can be complex. Therefore, it is always advisable to consult with a qualified elder law attorney to draft these documents to meet your estate planning goals. If you reside in Macomb County, or in the Metro Detroit area, and, are looking for an elder law attorney, call us at (586) 264-3756.

Continue reading "Living in Michigan and thinking of Estate Planning?" »

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!"

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!

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 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" »

In Michigan, most veteran's that I meet with are interested in learning more about a little known VA benefit called Attendance Aid and Care. Frequently, attorneys practicing elder law will refer to this benefit as A&A. This benefit is designed to assist veterans that are suffering from illnesses or disabilities with the cost of their medical care. A& A can become a great benefit for those that are interested in assisted living and home care.

Most veterans are prompted in receiving more information about this benefit while they are considering moving from their homes to a senior residence or after their families decide that they need more help at home. The benefit can provide a significant source of income to assist qualified veterans with their care. For some veterans, this benefit can even "open the doors" to facilities that they previously could not afford based on their regular monthly income.

The benefit is best viewed as a dollar for dollar match for medical expenses incurred by a veteran. It is not a benefit designed to assist a veteran that is otherwise healthy. For more information regarding this benefit, please contact an accredited individual, a military service organization or a well qualified Michigan elder law attorney that is accredited with the VA. If you are in Michigan or have a loved one in Michigan that may qualify for this benefit, please contact our office either by phone or through our website: www.smdalaw.com.