Posts in category: VA

There is no question – you are smart. You completed four years of college and then another three years of law school, and you passed the bar. You’re a practicing lawyer, you attend the minimum required continuing legal education courses your state requires (if any) and you belong to a great Listserv which you feel is all the support you need.

Then why in the past month have I received the following two questions about the Veterans Pension with Aid and Attendance from very smart, reputable, established attorneys?

Question One: I created a trust for the children of a veteran. All of the veteran’s accounts, to include the accounts where all income was being automatically deposited, were retitled into the name of the trust. The veteran was not the trustee or the beneficiary of the trust. Essentially, he inadvertently assigned his Social Security benefits and pension to a trust. The trust was irrevocable. This is not permissible under federal laws. However, that was not his concern. In fact, I am not sure he was even aware of that issue. Instead, he wanted to know how that transaction would affect the veteran’s VA benefits for which he had already applied. But more importantly, how could he fix it?

Question Two: I heard that I could file an “informal claim” for benefits to lock in an effective date and then later file the complete application with all supporting documentation. The benefit of this is that the approved benefits would go back to the month after the informal claim was filed (i.e. file the informal on September 30th and benefits will be retroactive to October 1st), which means more money for the client. What I didn’t learn or realize is that the veteran actually had to be financially eligible (under the income and asset limit) BEFORE we filed the informal claim. I have about 15 pending claims in this situation. I’m freaking out, what do I do now?

The Veterans Administration requires all persons who assist veterans with a specific claim, to include “planning” to become eligible for a claim, to be accredited. To maintain eligibility, the accredited agent must take a three-hour qualifying continuing legal education course within the first 12 months of accreditation. Thereafter, only three more hours are requested every other year (every 24 months).

Clearly, based on the questions I receive daily from lawyers who do meet the mandatory minimum CLE requirements, it is not enough. In fact, the Government Accountability Office published its latest investigative report on August 30, 2013 finding that the accreditation process and training requirements are not sufficient for competent representation. See http://www.sanders.senate.gov/imo/media/doc/GAO-13-643.pdf. The VA disagrees and has no plan to make any changes.

What about you? Do you practice on the marginal side with only the minimal level of education? Are you actually harming instead of helping clients? Are you smart enough to refer to a qualified attorney or to get more training?

There are numerous training opportunities to attend, from national organizations to state bar associations to private organizations. As an example, recently I was both attending and speaking at the Veterans Advocates Group of America’s annual conference, in Washington D.C. with about 70 other attendees getting educated on VA benefits. In December I will be speaking at the Missouri Bar Association annual conference, to both lawyers and paralegals.

Lawyers With Purpose provides continuous, up-to-date training on the latest issues, laws and planning opportunities for our members through live conferences, webinars and a resource database. Additionally, we provide a two-day Medicaid, Veterans Benefits and Asset Protection Summit several times a year, with our next event in November in Syracuse, New York.

If you would like more than the minimum training, and want to learn from the national expert on VA Pension Planning, then you’ll want to attend a Lawyers With Purpose event before you unknowingly harm a trusting client.

Victoria L. Collier is a Veteran and Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers With Purpose LLC, and author of “47 Secret Veterans’ Benefits for Seniors—Benefits You Have Earned … but Don’t Know About.”

With veterans benefits – ANYTHING! I receive emails no fewer than three times a week from lawyers saying, “I don’t understand what went wrong,” or “How do I fix this,” or “Why would the VA do or ask that?”

The latest one was from an attorney who assisted a client with long-term care planning, creating a trust wherein assets were retitled. After the repositioning of the assets, the client was referred to a veteran service organization to complete and file the application for pension with aid and attendance. The lawyer was no longer involved.

Yet a year later, the prior client calls the lawyer and says the VA is asking questions about transfers of assets within the two years prior to filing the application. The lawyer wanted to know why the VA would ask such a question. What would possibly have been entered or omitted from the application that would have triggered such a question?

Had the lawyer been familiar with the VA application process and the VA laws regarding transfers of assets, this situation would have (or should have) gone very differently.

For starters, it is critical to know the different application forms for benefits. There were THREE different initial application forms to choose between for a wartime veteran seeking pension with aid and attendance. The “old” standard form was VA Form 21-526, wherein the claimant could apply for either service-related disability compensation or non-service-related disability pension. If the claimant had ever filed a previous claim, then he could have filed the VA Form 21-527 for pension with aid and attendance. But, if he had wanted his claim “expedited” through the process, he could have filed VA Form 21-527EZ.

Although the Veterans Administration and the VA laws do not have a true “look back” period, like Medicaid, that penalizes transfers of assets, there is a law that states that if transfers are made to a person in the same household or if the claimant retains control or ownership, then the transfer will be voided and the assets will continue to be counted toward the net worth limitations. Thus, the VA can ask if there have been any transfers.

Beginning in 2011, the VA specifically included in the “instructions” of the VA application of benefits a statement that the claimant must disclose transfers of assets. But this declaration was only mandated in VA Form 21-526 and VA Form 21-527. Moreover, in VA Form 21-527, the form itself at Section VII, Item 29A and 29B specifically asks questions about transfers. If these forms are used and these blocks are left blank, the VA will then follow up and inquire.

Yet in VA Form 21-527EZ, the fully developed claim (expedited process) does not ask questions about transfers. Also, claims filed with this form go through the system much faster. The veteran service organization should have used this form to avoid a delay in processing the claim as well as to avoid all the questions about transfers.

It is not enough for a lawyer to create an asset protection plan. The lawyer, when advising about a specific VA claim, must be accredited by the VA and should also know enough about the application process to understand where the problems can arise and how to avoid or address them. Passing the ball to another without understanding the end game is dangerous to the lawyer (malpractice) and the client (denial of benefits).

This is one reason why I REALLY advocate that lawyers who engage in VA benefits planning should assist their clients with the applications in-house, pro bono as the law mandates, instead of farming them out to a VSO. It is only through personal experience that you can discover and truly know the benefits and consequences of the plan you created. When you refer the application to an outside source, you have no idea what they are doing and have no control over the process, which can totally unravel the planning. And, likely, when a problem does happen, the client comes back to you to fix it.

The best way to fix it is to be properly trained on all aspects of VA, not just the planning, and to keep it in house. Lawyers With Purpose has a VA processing system, to include application benefits software (being introduced in November) that will make it easy, efficient and cost effective for you to feel confident in maintaining control of the VA application for your clients.

Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers with Purpose, LLC, Co-Founder of Lawyers For Wartime Veterans, LLC, Veteran of the U.S.A.F. and author of “47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About.”

In this era of increased litigation, one would think businesses would be more conscientious and consumers would do more investigation. Unfortunately, this is not the case, especially when it relates to veterans benefits, causes and representation.

Just this month, a 51-year-old woman in Illinois who was “helping” disabled seniors who could not manage their own affairs was charged with mail fraud. As representative payee for these individuals, she was using their Social Security and Veterans Benefits to pay her own bills, to the tune of $500,000.

Last year, the directors of Help Hospitalized Veterans (HHV), a non-profit, were sued for misrepresentations in solicitations for funds from people who have compassion for veterans. The lawsuit complaint requested that the president and board members of the charity be penalized $4,000,000. In addition to excessive compensation for board members, they also benefited from country club memberships and a condominium outside of Washington D.C. Less than one third of the donations received were actually used for veterans. According to tax records, HHV received $31 million in 2011 and $45 million in 2012.

On August 30, 2013, the Government Accountability Office (GAO) issued another report on the Veterans Affairs processes and procedures affecting veterans. This particular investigation was directed at the VA’s ability to verify the worthiness of accredited agents who represent veterans when filing claims. The GAO also attacked the limited education requirements and on-going monitoring of the program once an individual is accredited. The GAO’s concerns are that (1) many accredited agents are not trained competently to help veterans; (2) after obtaining accreditation, other than self-reporting, there are no other efficient ways to monitor and ensure that the agents remain in good standing; and (3) there are numerous individuals assisting veterans who are not accredited. The VA only has four dedicated staff members to receive, review and approve applications for accreditation and to monitor the more than 20,000 accredited agents, with no plans to expand the staff. Thus, it is clear that even though the VA has been requiring formal accreditation for anyone who helps veterans prepare, present and prosecute claims, there is no guarantee that the person is qualified, in good standing or even accredited.

Whether the veteran is relying on another to manage funds due to him, contributing to a favorite charity, or hiring a lawyer or agent to assist with filing a claim, it is incumbent upon the consumer – the veteran – to do a higher level of investigation when hiring a representative. Not all representatives are created equal. Not all non-profits attribute donations to the intended recipients. And not all people who “want to help” are benevolent.

With regard to checking out an agent to assist with a VA claim, use these seven recommendations:

1. Go to http://www.va.gov/ogc/apps/accreditation/index.asp to see if the person is accredited by the VA. If not, stay away, even if the person provided the best steak dinner and polished seminar on the subject, or is actually a veteran as well.
2. If the person is a lawyer, go to the state bar website and see if there are any bar complaints.
3. If the person is a financial advisor or insurance (annuity) sales professional, check the Securities Exchange Commission or state Insurance Commissioner’s office for any negative history. If not accredited by the VA, ask if a lawyer is involved, who the lawyer is and whether the lawyer is accredited by the VA. Also, go to the professional’s website and verify any credentials.
4. Does the person assist with “planning” and preparation of the VA application or just refer you to a veteran service organization after completing the planning? If the latter, who is going to represent you if there is a problem with the application?
5. If the professional says, “I won’t charge you anything” to help, ask more questions about compensation (i.e. from commissions or an annuity)? No one works for free.
6. Use people who have been personally referred to you by another person who has actually used that person. A referral from a senior community that holds seminars is not a referral – they may know the person, but they likely have not hired the person for their own planning.
7. Ask what organizations the person belongs to, and whether the organizations are reputable. For example, reputable organizations that provide training on VA benefits include: Veterans Advocates of America and Lawyers With Purpose, LLC.

If you would like more information about the lawyers that are members of Lawyers With Purpose, go to www.LawyersWithPurpose.com. The lawyers of this membership receive on-going, timely information about veterans benefits by the leading national VA Pension Planning expert, Victoria Collier, author of “47 Secret Veterans’ Benefits for Seniors” and co-founder of Lawyers With Purpose, LLC.

Working with elderly clients can be a challenge. In addition to physical limitations, some may have cognitive issues, to include memory loss. Our role is to provide legal advice, guidance and assistance in becoming eligible for and applying for a Veteran’s Wartime Pension with Aid and Attendance. The very nature of the benefit indicates the client needs the aid and attendance of another person. However, that is not usually our struggle with obtaining the benefits. Rather, it is the Veterans Administration.

Do you ever feel this way? Below is an excerpt from my paralegal.

“I have only been doing my current job for almost seven months and the bulk of my responsibilities is the completion, submission and follow-up to our clients’ Medicaid applications and VA claims. Hands down the most unpleasant aspect of my job is my contact with the VA, whether by phone or in person. I have been lectured, scolded, hung up on, and definitely condescended to. My favorite is when I was tasked with clogging the system by repeated submissions of a VA form 21-22a. Well, if someone had bothered to register the first 21-22a that I submitted, then I would not have to keep sending the damn form over and over. Now, this treatment may be because I’m associated with an attorney’s office. However, as I watch the number of veterans and their family members and their treatment at the VA office, I don’t believe that I am being singled out. Now, I’m being paid to wait and if it pleases Mr. Air Force that I wait 3 hours to file some lousy papers, I will do so. However, what about everyone else that is not represented by an attorney or other agent who knows the ins and outs of the VA system? I’m truly saddened at the state of that organization.”

Your team member may feel the same way. Five key factors to take away from the above are:

1. Always remember why we are assisting the clients – they are disabled, elderly, and the VA system does not discriminate based on age or ability. Their inadequacies are equally applied to all, even to your client who needs extra hand-holding. We do the hand-holding. We make sure the application goes through the process as it should.
2. Make sure your employees know you appreciate the work they do, especially the really difficult work. It has an effect on their efficacy, mood and production. They are not getting the support they need from the government agencies, so they need it from you.
3. Be thick-skinned, professional and persistent. Just like being in the military, people will harass you just because they can. You have to learn it is a game, how to play the game and how to win. There is no sense in allowing personal frustration to interfere. Get the VA what they want and get your clients the benefits they deserve.
4. Recognize that working with the VA is frustrating. Create an outlet to release the frustrations. My paralegal writes about it. She complains internally with other firm members. But she doesn’t lose her composure with the VA. What can be your outlet?
5. Assisting clients with VA qualification and applications is rewarding and satisfying work. The gratitude from the veterans and/or their families is incomparable to other types of work. Knowing you helped a veteran with the ability to live the rest of his life with true quality of life is gratifying.

If you would like to help veterans on a larger scale, learn the secrets of how to work with the VA and feel good about the work you do, then join Lawyers With Purpose for a two-day Medicaid and Veterans Benefits Summit in November 2013. For more information contact Molly Hall at mhall@lawyerswithpurpose.com.

Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers with Purpose, LLC, Co-Founder of Lawyers For Wartime Veterans, LLC, Veteran of the U.S.A.F. and author of “47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About.”

So many attorneys and clients get hung up on the 60‑month look-back period when considering Medicaid planning. Many clients believe they have to wait 60 months to qualify for Medicaid if they give assets away. There is no such rule. 60 months is merely the look-back period. 60 months represents the period of time Medicaid can look back at your financial records; it has nothing to do with how long you’re ineligible. On the flip side, many lawyers believe 60 months is the number of months they have to wait if they do a pre-plan to ensure that it works. That too is a fallacy, as the number of months essential in a pre‑planning case is the “break-even” number of months, not 60. So what is the break-even? This is the most fundamental concept in Medicaid planning.

We know that in any Medicaid crisis plan, if the client comes in we can get that client qualified in a certain period of time. At LWP we call this “minimum months to qualify.” Understanding that in a crisis case the minimum months to qualify is the “worst case scenario,” we then need to look at the best-case scenario, which would be the client staying healthy for 60 months. Therefore, the break-even is the best case minus the worst case.

For example, recently I did a pre-planning case for a client who, had it been a crisis, I would have been able to qualify in 22 months. This was a client with over $800,000 in assets, and in crisis we would have been able to save over $700,000 of it. But understanding that the client is not in crisis means we are doing the same exact plan and then waiting for medical needs to occur. If the medical need occurs before the break-even point, then we would convert to a crisis plan. If the medical need occurs after the break-even point, we would keep the original pre-plan in place without modification.

So what is this break-even point? In my fact pattern it’s 38 months: 60 months (best case) minus 22 months (worst case). In this fact pattern, if my client goes into a nursing home before month 38, all I would need to do to my pre-planning case is “flip the switch” and convert it to a crisis plan to get him qualified in 22 months. If the client stayed healthy after the break-even, then I would do nothing and let the plan play out as originally structured and the client would be eligible in the timeframe identified. So, next time someone tells you about 60 months, shake your head and say “What? Don’t you know the break-even?”

Come join us September 12-13 in Phoenix, AZ, for our Asset Protection, Medicaid & VA Summit. Join your colleagues where we will discuss, discover, and provide solutions for Asset Protection, Medicaid, and VA Benefits. Click here to review the agenda and see all that you'll learn in just two day.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder of MPS, Founder and Senior Partner of Estate Planning Law Center.

Congratulations to Victoria on an excellent profile article that appeared in University of Nebraska Transcript magazine published by the University of Nebraska College of Law.

We are extremely fortunate have such an accomplished attorney as a part of LWP and a resource for our members. Click here to read the article. Thank you John Feller of Feller Law Office, P.C., L.L.O, for sharing.