Michigan veterans and seniors need to express their concerns over proposed new VA regulations affecting their ability to plan for benefits. Our office supports changes to regulations in order to protect seniors and veterans in Michigan, but, changes need to be consistent with Congressional intent, the Constitution itself, and, at the very least, consistent with Medicaid regulations that are true and tested over time.

Current VA regulations DO NOT include a “look back” period. This has provided unscrupulous planners to take advantage of the law to sell financial products unfit for seniors facing long term care planning decisions.

Seniors and veterans using accredited attorneys, agents, or other planners skilled in elder law often provide sound, legal strategies to ensure that seniors and veterans that need help, DO NOT exhaust their assets because of the cost of their care and are others forced into a nursing home, at the federal government’s own expense, in the form of Medicaid.

Your help is needed to protect Michigan veterans and seniors. The Department of Veterans Affairs (VA) has introduced new regulations that will negatively affect your ability to receive benefits for yourself and your loved ones.

New proposed regulations, introduced January 23, 2015, will create a three (3) year “look-back” period for applicants, similar to Medicaid. It will eliminate your ability to protect your assets through legal planning strategies to immediately qualify for benefits.

Although our office supports protecting veterans and seniors from abusive planning practices, the new policies simply go too far by creating several unintended consequences:

As most Michigan Veterans are aware, Agent Orange was not the only herbicide used in Vietnam. There was also Agent Purple, Agent Green, and Agent Pink, which were part of the “rainbow herbicides” used to defoliate the jungle of Vietnam Nam. Purple and Orange were also used in Canada.

Agent Purple was used before Agent Orange came on the scene, between 1962 and 1965.

Recent changes to the federal code of regulations governing VA benefit eligibility may allow Veterans exposed to herbicides to recover benefits due to exposure while in service. 38 CFR 3.309(e) states exposure to “herbicides”…not specifically to Agent Orange; therefore, exposure to Agent Purple should also be covered if the veteran served within the presumptive time frames covered in statute.

Over the past few days, several attorneys that I collaborate with are scrambling to get the “word” out to our lawmakers about the VA’s proposed changes to regulations affecting eligibility for improved pension and aid and attendance benefits.

In the last entry we encouraged readers to contact their representatives in the United States Congress to make their opinions count and voice opposition. Following a conference with members of a national networking group, Arizona Attorney, Steven Dabbs proposed the following letter. Feel free to “cut and paste” if you would like your voice to be heard to help our seniors and veterans. Your local lawmakers can be found at: Find Your Lawmaker

RE: This is submitted in response to ”RIN 2900-AO73, Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.” Proposed Rules change.

On Friday our office received notice that the VA has submitted significant changes to non-service connect benefit eligibility that will directly impact Michigan Veterans and Veterans nationwide. Click here for a link to these changes.

Michigan Elder Lawyers, National Academy of Elder Law members and several Veteran Service Organizations (VSO) oppose the proposed regulations. Specifically, the changes will:

1. Create a three (3) year look-back period for new applicants.

Michigan families in Metro-Detroit and West Michigan helping a loved one with long term care, elder law, Medicaid, and VA assistance are faced with several difficult questions. The most important question involves the type of placement that is appropriate for their loved one. Often times, nursing home care or “homes for the aged” as they are licensed, are the first answer to the placement question. Nursing homes, are designed to help those that truly need the most care. If your loved one does not truly need “full 24 hour care” better placement solutions can be found at adult foster care facilitates, independent living facilities or private care facilities. Despite the placement options available, most families solely make the decision based on finances and available governmental benefits.
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As the year draws towards an end, the annual cost of living adjustments (COLA) for social security and other govenmerntal benefits are released. Hot off the press and effective January 1, 2015 the following will apply to qualified veterans receiving and or applying for non-service connected pension benefits in the form of aid and attendance:

Surviving Spouse $1,149.00

Single Veteran $1,788.00

Now that you know the basic information about fiduciaries from our Fiduciaries: A Closer Look blog article, it is time to consider which individuals or entities are appropriate for these positions. If you live in Metro Detroit or West Michigan we can help you with your estate planning, but first you need to determine who will serve as your fiduciaries.

Personal Representative

The term personal representative applies to testate and intestate administration and replaces or includes the former titles of executor and administrator.

So you live in Michigan and have finally decided to create an estate plan and it is time to choose a fiduciary – but what does that really mean?

A fiduciary is an individual that stands in a special relation of trust, confidence, or responsibility in certain obligations to the testator. Michigan law creates several different types of fiduciary positions for estate planning.

Fiduciaries, such as a personal representative and trustee, owe obligations of prudence, reasonableness, and loyalty to the person for whom he or she acts.

Unlike conventional estate planning documents that deal with transfer of property to beneficiaries upon your death (i.e. last will and testament, or revocable trusts) the durable power of attorney operates during your lifetime and allows you to chose individuals to act on your behalf. At Serafini, Michalowski, Derkacz & associates, P.C., our estate plans generally include durable powers of attorney, as these documents are just as important as wills and trusts.

A power of attorney allows a person (the principal) to authorize another person (the agent) to act in his or her place. In Michigan, a Durable Power of Attorney (DPOA) is defined as a power of attorney by which a principal designates another as the principal’s attorney in fact in writing and the writing contains the words “This power of attorney is not affected by the principals subsequent disability or incapacity, or by the lapse of time” (DPOA Effective upon Execution) or “This power of attorney is effective upon the disability or incapacity of the principal” (DPOA Effective upon Disability).

A Durable Power of Attorney Effective upon Execution allows the agent’s authority to begin immediately after the written DPOA is signed. There are dangers in allowing an agent’s authority to begin immediately, and you should consider whether you trust the agent to have this power when you are not disabled. Although dangers are associated with a power that is immediately effective, there are also advantages. A primary advantage to making the DPOA effective immediately is that it eliminates the need to produce evidence that the agent’s authority has been triggered. A DPOA effective upon execution is generally favorable to married couples, where the benefit of acting anytime outweighs the concern of giving the agent too much power while the individual can make their own decisions.