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Do Your Shareholders Know?

August 1, 2016

by Lawyers With Purpose with 2 Comments Coaching & Implementation Systems & Processes

When I was growing up, my parents never talked about money. The bills would come in and be stacked up on the arm of the couch until my mother paid them on Sunday nights, after the kids were in bed. There were only three things I knew about my parents’ finances: 1) They saved all year for us to take a three-week vacation in the car to visit family in Virginia and Illinois; 2) We were middle-class; and 3) After my dad had his first heart attack when I was in the eighth grade, the common expression became, “Do you think money grows on trees?” Of course I didn’t, but I also didn’t know why I couldn’t have a coke after basketball practice anymore.

Now that I am a business owner and the financial support for my family, I understand the dramatic fluctuation of cash flow. And, unlike my parents, my 6-year-old children are getting a handle on it too. They are, after all, the shareholders of my business.

My daughter and I have a daily ritual. Each morning she bids me farewell to “make some money.” Each evening she asks me, “Mommy, how was your day?” and “Did you make any money?” One day I responded with, “Yes, we made $5,350 today.” She inquired, “Is that a lot of money?” I replied, “Yes, to some people that is a lot; however, Mommy didn’t make her goal today.” Sometimes when she asks, I tell her that we didn’t make any money that day because it was a business development day, when I meet other professionals instead of clients.

I am comfortable having these conversations with my 6-year-olds because I am working for my family and they deserve to know the status of the business, just like any other shareholder of a business or stocks or financial investments. Furthermore, it helps my family understand why I am “going to work” instead of staying home with them. Lastly, they are learning real business skills, which may serve them and me well in the future (especially if they want to take over my business).

Who are your shareholders? A spouse? Children? Grandchildren? Yourself as you plan for retirement? Whomever it is, be honest and open with them about the state of affairs of the business and finances. This will keep you motivated to set, review and reach your goals.

Victoria L. Collier, Co-Founder, Lawyers with Purpose, LLC, www.LawyersWithPurpose.com; Certified Elder Law Attorney through the National Elder Law Foundation; Fellow of the National Academy of Elder Law Attorneys; Founder and Managing Attorney of The Elder & Disability Law Firm of Victoria L. Collier, PC, www.ElderLawGeorgia.com; Co-Founder of Veterans Advocates Group of America; Entrepreneur; Author; and nationally renowned Presenter.

Understanding the Child Caregiver Exemption

July 28, 2016

by David Zumpano with 2 Comments Asset Protection

As many of us are aware, the federal guidelines allow Medicaid applicants to transfer their home to a child caregiver without suffering a Medicaid penalty for the transfer. It is a transfer often attempted by families in the Medicaid application process. It is also a transfer that often fails to meet the requirements necessary for the Medicaid agency to acknowledge the transfer under the child caregiver exemption.

The federal guidelines for the transfer remain somewhat vague, declaring that each state must develop “reasonable standards … for determining eligibility for and the extent of medical assistance,” and that the individual must “fulfill the criteria established by the State in which he lives.” 42 USCA 1396a(a)(17)(A), 453 US 34. This makes it of critical importance that we look to our individual state laws for the specific guidelines necessary. It is also crucial that our clients provide the documentation necessary to prove they acted properly as a caregiver for the parent for at least two consecutive years prior to the transfer.

Generally, individual states require that the child caregiver has resided in the parent’s home for at least two consecutive years immediately preceding the institutionalization of the parent AND provided full-time care for the parent who would otherwise have required institutional care for that entire time period. This is a very specific burden to meet. Just last month, the Superior Court of New Jersey held that a transfer made to a child caregiver who had taken care of her parent for five years prior to institutionalization and met all other requirements of the rule was not valid because the parent had left the nursing home and resided with her son for five months prior to moving back to the nursing home and making the transfer to the daughter. MK v. Dep’t of Human Services, Superior Ct of NJ, Docket No. A-0790-14T3.

So, what must we ensure that our clients have in order to make the transfer? First, we as attorneys must have a clear understanding of the Medicaid guidelines in our own states. Then we need to be sure our clients obtain, and we review, the required documentation. The Medicaid Child Caregiver Exemption generally requires the following documentation.

1. Doctor’s letter

I immediately require that my clients bring me the letter from the doctor as soon as they indicate they may qualify for the exemption. I encourage them to have the doctor state all conditions that the parent suffers from, the time period the parent has suffered from those conditions, and that BUT FOR THE CARE OF THE CHILD, the period of time the parent would have required institutional care. Medicaid may, after reviewing the doctor’s letter, request medical records; however, they do not generally need to be provided without Medicaid requesting them.

2. Proof of child’s address

To qualify for the exemption, the child is required to have lived in the parent’s home for the two years IMMEDIATELY preceding the institutionalization. The fact that the child owns a home and spent part of the time there may pose an issue. Any break in living together in the parent’s home may pose issues as it did in the New Jersey case.

3. Proof of relationship

If the child has a different last name than the parent, he or she needs to be prepared to present a birth certificate in order to prove relationship. Step-children generally do not qualify for the child caregiver exemption.

4. Proof the child provided full-time care

Medicaid may also ask for the past two years of tax returns. Clients may run into an issue here if they worked during the past two years. Generally, the exemption disallows any occupation other than acting as caregiver for the parent. However, in some states, part-time work outside the home is allowed when another child was providing services, or a caregiver was hired, during that time period.

Again, the first step in successfully transferring a home under the child caregiver exemption is knowing the rules of your jurisdiction. Second, we must make sure our clients can actually provide us with the proof required to meet Medicaid’s standards. Often, it is the second prong where we run into trouble. Medicaid rules are often not malleable, and documentation must prove that each prong of the state standard is met.

If you want to learn more about Lawyers With Purpose and make sure you keep up on the latest and great in the estate and elder law arena, subscribe to our blog and we'll deliver content right to your in-box: http://blog.lawyerswithpurpose.com/

Kimberly Brannon, Technical-Legal & Software Trainer – Lawyers With Purpose

Where in the world is Janesville, Wisconsin? Possible changes to where VA claims should be filed.

July 14, 2016

by Lawyers With Purpose with One Comment Systems & Processes VA

If you had asked me a few months ago where you should mail your VA non-service-connected (NSC) disability pension claims, I would have answered with conviction . . . it depends! I’m not trying to be funny, it’s just that it literally depended on the state where the claimant resides. Every state is served by one of three Pension Management Centers (PMC): Philadelphia, Milwaukee, or St. Paul. Philadelphia, PA serves the eastern states; Milwaukee, WI serves the central states; and St. Paul, MN serves the rest of the states from Minnesota to the west coast. Alaska and Hawaii are served by the St. Paul PMC as well. Claimants living in Mexico, Central and South America, and the Caribbean should file in St. Paul for NSC disability pension claims and appeals of those claims. Residents of all other foreign countries should file such claims at Philadelphia’s PMC. See Resources below for mailing addresses and a list of all corresponding states and countries. The Pension Management Centers, as their name suggests, focus on pension benefits and do not handle any service-connected-disability compensation claims, or claims for both compensation and NSC disability pension, sometimes called dual claims.

Title 38 of the Code of Federal Regulations (CFR) §3.155 on “How to file a claim” begins, “The following paragraphs describe the manner and methods in which a claim can be initiated and filed,” but in all the detail that follows, nowhere does it tell you where specifically to mail a claim. The VA Adjudication manual M21-1 similarly fails to give such particulars. If you search online for “how to apply for veterans’ benefits,” you may eventually end up at the VA website that – as of the time this was written – still clearly directs you to “mail your application to the Pension Management Center (PMC) that serves your state.” However, since last year, rumblings of a change have begun to be heard that the mailing process may be undergoing an update.

That brings us to Janesville, WI, which may be familiar to those who file service-connected-disability compensation claims, but may not be to those of us who deal exclusively with NSC disability claims. It is the Janesville Evidence Intake Center (EIC) in Wisconsin where all claimants residing in states roughly west of the Mississippi have been filing service-connected-disability compensation claims for some time. However, Janesville may become the hub of a centralized mail intake system for all veterans’ pension AND compensation claims from all over the world. Since last year, the VA has periodically inserted with their correspondence the directive that all mail should now be sent to a PO box at the EIC in Janesville. In addition, an 11-page VA fact sheet on centralized mail processing was quietly issued in March 2016 stating that “New addresses for the submission of material went into effect on July 7, 2014.”

Per this fact sheet, the U.S. Postal Service is apparently automatically redirecting material that is mailed to Regional Offices or PMCs to Janesville. Specific PO boxes have been designated to specific categories of claims. However, from this hub, the claim will eventually be routed back to the pension management center where you are currently sending your claims for processing. Therefore, those who have been routinely filing NSC disability pension claims at the appropriate PMC may now be faced with a dilemma: obey the “new” – and by no means widely-known – directive, or continue as before. At our law firm, except for replies to VA letters that provide a specific return address, we continue to file all our claims at the appropriate PMC. Some law firms, in an abundance of caution, have started filing at both the PMC and the Janesville EIC. And yet others use only the addresses and fax number in Janesville that are given on the fact sheet.

So ask me today where you should mail your VA non-service-connected (NSC) disability pension claims and I will answer with conviction that you should take your pick – from the addresses provided below in the Resources section.

Resources

Philadelphia VA Regional Office

5000 Wissahickon Ave.

PO Box 8079

Philadelphia, PA 19101

Fax #: (215) 842-4410

Service Area: Connecticut, Delaware, Florida, Georgia, Maine , Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Vermont, Virginia, West Virginia, all foreign countries other than Mexico, Central and South America, and the Caribbean

Milwaukee VA Pension Center

PO Box 342000

Milwaukee, WI 53234-9907

Fax #: (215) 842-4430

Service Area: Alabama, Arkansas, Illinois, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Ohio, Tennessee, Wisconsin

St. Paul VA Regional Office

Pension Management Center (335/21P)

PO BOX 11000

St. Paul, MN 55111-0000

Fax #: (215) 842-4420

Service Area: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Iowa, Kansas, Minnesota, Montana, Nebraska, North Dakota, New Mexico, Nevada, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming, Mexico, Central and South America, and the Caribbean

Janesville Evidence Intake Center

Fax #: (844) 822-5246

Philadelphia PMC

Dept. of Veterans Affairs

Claims Intake Center

Attention: Philadelphia Pension Center

PO Box 5206

Janesville, WI 53547-5206

St. Paul PMC

Dept. of Veterans Affairs

Claims Intake Center

Attention: St. Paul Pension Center

PO Box 5365

Janesville, WI 53547-5365

Milwaukee PMC

Dept. of Veterans Affairs

Claims Intake Center

Attention: Milwaukee Pension Center

PO Box 5192

Janesville, WI 53547-5192

If you would like to learn more about becoming a Lawyers With Purpose member join us for our FREE webinar "Running Your Firm Like A Business" on Wednesday, July 27th at 8 EST / 5 PST. Click here to reserve your spot today.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers with Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose: and Co-Founder of Veterans Advocate Group of America.

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Taking on DHS: Successfully Challenging the Medicaid Penalty

July 12, 2016

by Lawyers With Purpose with 4 Comments Asset Protection

We want to welcome Richard Winblad, Guest Blogger and Lawyers With Purpose member. Today Richard shares about his win with the Medicaid Penalty. Great work making a difference for your clients!

Taking On DHS Benefits the Client and Referral Source

An accounts receivable director of a nursing home advised me about a disturbing Medicaid denial they received. The case had already gone to one Fair Hearing. The caseworker identified $60,000 of checks that she contended were made without receiving “commensurate return.”[1] During the hearing, she wanted to amend the finding so that $113,000 was improper and to deny benefits for 792 days. In Medicaid language, this means that it would not reimburse the nursing home until after the two years had passed. Not a great result for a 95-year-old widow suffering from Alzheimer’s disease. This was bad news for the facility and for the family. The family had no resources to self-pay.

The nursing home was interested in having the result reversed. They were already out approximately $40,000 in unreimbursed fees and were not relishing funding an additional $70,000. Clearly, the caseworker’s decision had to be examined and perhaps challenged. Eviction was not an option the nursing home was willing to consider. It also wanted to avoid funding her care. The administrator saw the value of paying an elder law attorney to represent the resident. Of course, the resident’s guardian agreed to the arrangement.

Training Builds Confidence

Lawyers with Purpose provides training that is useful in dealing with Medicaid eligibility gatekeepers. Sometimes caseworkers get things very wrong, resulting in improperly denied benefits. This case involved a “lookback period” which is 60 months prior to the Medicaid application. The agency looks for transfers for less than “fair market value.” Generally, the agency examines transactions with family members and often treats these as gifts. The amount of the gifts is then divided by that state’s reimbursement rate to compute the penalty period. For example, Oklahoma’s reimbursement rate is $143.70 per day.

$113,810 ÷ $143.70 = 792 days

Aside from the initial training, Lawyers with Purpose provides online content and webinars that reinforce and expand the initial training. It also connects attorneys through a Listserv email group where members can ask and answer questions. One-on-one legal technical service is also available.

Not Accepting Medicaid’s Answer

The caseworker acts as the initial gatekeeper. If an application is denied or penalty period is imposed, the applicant must be notified of the decision and provided with an opportunity for a “Fair Hearing.” If unsuccessful at the Fair Hearing, further appeals are available typically to the agency director, then to the state courts.

Federal Option

However, the state’s administrative process is not the only avenue for relief. Denials of benefits often trigger claims under 42 U.S.C. § 1983 which can be brought in federal court. A successful §1983 claim can entitle the victor to attorney’s fees. In many jurisdictions, this may be the best answer. It is good to review both federal and state decisions in order to determine the most advantageous route. In this case, the most expeditious way to challenge the caseworker was through the Fair Hearing.

Pretrial Preparation

This case involved review of the denial and of the Fair Hearing Packets. Family witnesses were interviewed and records examined. An opening brief demonstrated flaws in the caseworker’s logic and legal basis. It also involved developing the family story that showed the funds paid were for care, that there were time logs, and why the care was necessary. The state agency filed a reply, which used a different but nonetheless incorrect legal standard. Naturally, we filed a reply to the response.

The Hearing

Telephonic hearings are difficult, especially when using financial exhibits. About a week before the hearing, we delivered an exhibit that showed how challenged checks matched time records kept by the caregiver. Just like any trial, we wanted our evidence in and theirs out. Although not requested, we filed a brief containing the proposed findings of fact and conclusions of law. We received the decision about two weeks after the hearing. The themes in the briefs, testimony and exhibits were reflected in the findings and reasoning of the hearing officer. Of the $113,800 originally challenged, the administrative law judge found only $1,983 to be inappropriate. This reduced the penalty period from 792 to 13 days.

Don’t Be Afraid to Fight

I come from a litigation background, so a Fair Hearing is simple. Evidence standards are relaxed. It has the feel of a small-claims proceeding. There are few formal pretrial procedures, but it is good to play by the normal court rules of the jurisdiction. Informal requests for information normally resulted in production.

Conclusion

The imposition of a penalty period was based upon bogus views of the law and the facts. Despite being confronted with the applicant’s case, the agency was unwilling to make any substantial concessions. Unless the applicant won, she might have died without ever receiving any benefits. Ultimately, the administrative law judge agreed with the applicant’s position and accepted her facts. LWP’s training made the victory possible.

Richard Winblad,

Richard is an attorney and LWP member who practices estate and Medicaid planning in Oklahoma. He is a Veterans Affairs Accredited Attorney and provides educational programs to consumers and elder care professionals. Richard is president of the Oklahoma City Commercial Lawyers Association. His blog can be found at www.WinbladLaw.com

[1] The caseworker was using the incorrect term; what she really meant was that the resident did not receive anything in return.

If you want to learn more about becoming a Lawyers With Purpose member, give us a little information, then check out our membership benefits here: https://lawyerswithpurpose.com/Membership-Brochure-Registration.php

Congratulations to John Holden, Lawyers With Purpose Member of The Month

July 8, 2016

by Lawyers With Purpose with No Comment Coaching & Implementation Systems & Processes Team Building

What is the greatest success you’ve had since joining LWP?

I have had the honor of assisting a Vietnam Veteran and his family in the design and implementation of an asset protection plan that protected and preserved approximately 420 acres of land, 60 head of cattle, oil and gas production as well as a headright. It was gratifying to devise a plan that met the client’s wishes and also enabled the veteran to qualify for VA Pension Benefits. I would not have had the confidence or the skill to competently assist this family without the training and software provided by LWP.

What is your favorite tool?

So far, the LWPCCS templates. In addition, I have implemented the Risk Analysis Interview and have been able to use the Risk Analysis Letter and Funding Map to provide clients with a visualization of how to accomplish their stated goals of protecting most of their assets while positioning themselves for qualification for long term care assistance by means of either VA Pension Benefits or Medicaid. Further, the training videos for the various marketing workshops are helpful in the development of my marketing efforts.

How has being part of LWP impacted your team and your practice?

Evidently, I must be the “other one per cent”, since I have no team. However, the support I have received with respect to legal technical and marketing issues has been extraordinary. I am also grateful for the encouragement I have received to get out of my comfort zone and to actively engage in marketing to my surrounding communities.

Share something about yourself that most people don’t know about you?

I am blessed with two (2) great kids. My daughter, Marlowe, is an actor in New York. My son, Taylor, is an audio performance engineer and works for Clair Global.

What is your favorite book and how did it impact your life?

A friend gave me a copy of “Purpose Driven Life” by Rick Warren at a particularly difficult point in my life. The book provided me with clarity and a path forward when I really needed it.

Victoria Collier Signs Publishing Deal With CelebrityPress® To Co-Author New Book

June 29, 2016

by Lawyers With Purpose with No Comment VA

Victoria Collier, Co-Founder of Lawyers With Purpose and Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, has joined Jack Canfield, along with a select group of experts and professionals, to co-write the forthcoming book titled, The Road to Success: Today's Leading Entrepreneurs and Professionals Reveal Their Step-By-Step Systems To Help You Achieve The Health, Wealth and Lifestyle You Deserve. Nick Nanton, Esq., along with business partner, JW Dicks, Esq., the leading agents to Celebrity Experts^® worldwide, recently signed a publishing deal with Collier to contribute her expertise to the book, which will be released under their CelebrityPress® imprint.

The Road to Success: Today's Leading Entrepreneurs and Professionals Reveal Their Step-By-Step Systems To Help You Achieve The Health, Wealth and Lifestyle You Deserve is tentatively scheduled for release in fall 2016.

A portion of the royalties earned from The Road to Success will be donated to Entrepreneur’s International Foundation, a not for profit organization dedicated to creating unique launch campaigns to raise money and awareness for charitable causes.

About Victoria Collier:

Victoria Collier has been helping lawyers find their legal niche within estate planning since 2006. Being a paralegal in both the United States Air Force and also in the private sector, Victoria learned from her mentors that being a “jack-of-all-trades” and a “generalist” would only bring boredom and burnout.

Since establishing her own law firm, The Elder & Disability Law Firm of Victoria L. Collier, PC, exclusively to assist individuals planning for the second phase of their life, Victoria has created niches within niches and coached hundreds of other attorneys to do the same. It is Victoria’s goal to help other professionals find their passion and create profit. Victoria’s client base ranges from lawyers, to authors, to work-from-home mothers.

Victoria knows how to work hard and smart. She moved from her parents’ house at age 17, still in high school and while working full time. After graduation, Victoria moved from Houston to Dallas, knowing only one person. Victoria worked several jobs simultaneously to support herself until she enlisted in the USAF at age 19. Victoria was trained as a carpenter and mason, being only one of two females in a shop of almost 50 men. Three years later she cross-trained and became a paralegal, prosecuting and defending military personnel. After six years of honorable service during the Desert Storm era, Victoria entered the civilian workforce in South Georgia as a paralegal working with people with disabilities. Inspired to do more, at the age of 29 Victoria enrolled in law school at the University of Nebraska – Lincoln, College of Law. Upon graduating, Victoria opened her own law firm focusing on estate planning, disability planning, and elder care planning. In 2006 Victoria began educating lawyers across the nation on the special benefits available to senior veterans who were disabled. She not only became the national expert in VA Pension Benefits laws, but she created a fast growing niche within the estate and elder care planning profession. Due to the changing atmosphere of elder care, Victoria is once again creating a niche in elder law and coaching lawyers on how to incorporate long-term care planning through the use of financial products within their law practice.

Victoria is the author of the top selling book, 47 Secret Veterans’ Benefits for Seniors, Benefits You Have Earned But Don’t Know About!; 47 Secret Marketing Strategies for Veterans Benefits Attorneys; and Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Georgia Edition. Victoria has also co-authored the following books: Blooper Episodes in Estate Planning and Elder Law: Lessons From Prime Time TV, Georgia Edition, with Debbie J. Papay; Don’t Go Broke in a Nursing Home, Georgia Edition, with Don Quante; Protect Your IRA: Avoid the 5 Common Mistakes, with David J. Zumpano, CPA, J.D.; Running Through Life’s Lessons, with Jackie Clark; and Getting to Baby: Creating your Family Faster, Easier and Less Expensive through Fertility, Adoption, or Surrogacy, with Jennifer Collier.

About Celebrity Press^®:

Celebrity Press^® is a leading business, health and wellness book publisher that publishes books from thought leaders around the world. Celebrity Press^® has published books alongside Jack Canfield, Brian Tracy, Dan Kennedy, Dr. Ivan Misner, Robert Allen and many of the biggest experts across diverse fields. CelebrityPress^® has helped launch over 1500 best-selling authors to date.

Learn more at http://www.celebritypresspublishing.com

Stick to Your Guns Trusts: Impact of the Brady Act of 1993 on Incompetent VA Beneficiaries

June 28, 2016

by David Zumpano with One Comment Estate Planning Drafting Software Legal Technical

“We have received information showing that because of your disabilities you may need help handling your Department of Veterans Affairs (VA) benefits.” That is how the letter usually begins. A claimant may receive this letter after benefit approval, when the VA proposes a rating of incompetency, which usually means a fiduciary will need to be appointed to manage the VA funds. Generally, the letter does not come as a surprise – one can anticipate such a proposal when the doctor completes the VA form 21-2680 citing dementia or other illnesses that may affect the mind as a diagnosis and/or indicating that the claimant does not have the ability to manage his/her own financial affairs. However, you may not be aware of how the determination of incompetency, or the appointment of a representative payee for any reason, will impact your client’s Second Amendment rights. The VA spells it out for you in the same letter that proposes a finding of incompetency in the section titled “How This Decision Could Affect You”:

A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any prohibition, pursuant to section 924(a)(2) of title 18, United States Code, as implemented by Public Law 103-159 of the Brady Handgun Violence Prevention Act, you may be fined, imprisoned, or both. – VA Adjudication Manual M21-1, III.v.9.B.3.b.

In fact, once the finding of incompetency is finalized or a representative payee is appointed for any reason, including the applicant appointing one for convenience, the VA will forward to the Federal Bureau of Investigations (FBI) the name of the allegedly incompetent VA beneficiary to be placed in a database called the National Instant Criminal Background Check System (NICS). Anyone attempting to legally purchase a firearm in the United States should have their name checked against the NCIS database by the gun dealer before the final sale.

Fortunately, the VA also informs you of how to seek relief from the prohibitions of the Brady Act:

If we decide that you are unable to handle your VA funds, you may apply to VA for the relief of prohibitions imposed by the Brady Act with regards to the possession, purchase, receipt, or transportation of a firearm. Submit your request on the enclosed VA Form 21-4138, Statement in Support of Claim. VA will determine whether such relief is warranted. – VA Adjudication Manual M21-1, III.v.9.B.3.b.

The NICS Improvement Amendments Act of 2007 (NIAA) amended the Brady Act so the VA is obligated to allow incompetent beneficiaries the opportunity to request relief from the latter act’s reporting requirements. The NIAA places the responsibility for administering the relief program on the VA. Note that relief from the reporting requirements of the Brady Act is not considered a “benefit” under Title 38. Therefore, principles common to the VA’s adjudication process that benefit the claimant, such as “benefit of the doubt” and “duty to assist,” do not apply. The burden of proof for these requests resides with the beneficiary, and the requests must be clear and explicit. The application for relief from these prohibitions is reviewed by a Veterans Service Representative (VSR) who must determine whether there is “clear and convincing evidence [showing] the circumstances regarding your disability and your record and reputation are such that you are not likely to act in a manner dangerous to yourself or others, and the granting of relief is not contrary to public safety and/or the public interest,” according to VA Adjudication Manual M21-1, III.v.9.B.4.e.

In order to be successful, the application for relief must include a statement from a primary mental-health physician assessing mental health status over the last five years, medical information addressing any mental health symptoms and whether or not the claimant is likely to act in a manner dangerous to himself/herself or to the public, and evidence of his/her reputation, through character witness statements, testimony, or other character evidence. The VA will also seek your signature on a consent form that allows them to run a criminal background check. VA decisions that deny relief are not subject to review by the Board of Veterans’ Appeals. They are, however, subject to review in Federal District Court, and for this reason, all such decisions must contain a detailed explanation of the basis for denial.

To date, there has been no case pushed to the Supreme Court to determine if the actions of the VA are constitutional. David Goldman, a nationally recognized gun trust attorney, suspects it will likely take the involvement of the NRA or the Second Amendment Coalition to get a case heard before the Supreme Court on this issue.

Until that time, it is up to us to protect our clients and their firearms. In Henderson v. US (575 US ____ Docket No. 13-1487 (2015)), the SCOTUS held that a person not entitled under the federal law to possess firearms has not also lost the property right to the same. This decision makes gun trusts a vital tool. By placing the guns of a client who has been deemed incompetent into a gun trust, we can allow the client to maintain ownership of the guns the client wishes to protect. However, it is important to understand that the client cannot, under current rules, have actual possession of the firearms. This means the client cannot be the trustee of the gun trust and the firearms must not be accessible to the client. So, the trustee must lock the guns in a cabinet or move them to some other location the VA applicant cannot access. Failure to follow these rules can and has resulted in guns being seized from veterans.

Hopefully, this issue will get to the Supreme Court in the near future. However, in the interim, we need to proceed with caution in appointing representative payees in cases where it is not necessary for our clients with guns. When representative payees are necessary due to incompetence, the veteran may not maintain possession, but only ownership, of his firearms. The establishment of a gun trust under the correct guidelines can afford our clients the ability to maintain their guns.

If you want to learn more about becoming a Lawyers With Purpose member, click here to download our Membership Brochure and review all the benefits and tools available to our members.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers with Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.

Congratulations to Connie Aschenbrenner, Lawyers With Purpose Member Of The Month

June 21, 2016

by Lawyers With Purpose with No Comment Coaching & Implementation Systems & Processes

What is the greatest success you’ve had since joining LWP?

I accept the challenge to name my greatest success since joining LWP and believe it is having become a member of an organization of like-minded estate planning attorneys. Organization is a word, I would describe LWP as a family.

What is your favorite LWP tool?

I use the design templates each time I work with a client. These templates insure that I am discussing all of the issues with my clients.

How has being part of LWP impacted your team and your practice?

Being a member of LWP has given me the opportunity to learn and fine tune my skills as an estate planning attorney. LWP membership has helped me understand the value I bring to my clients. My understanding of the value we as the LWP community hold and share daily has increased my self-confidence.

I share in each of my workshops that I attend national conferences throughout the year. These conferences provide educational material and networking opportunities, where I meet outstanding attorneys from throughout the United States. I also attend the recurring educational webinars provided by LWP members while I am in my office.

Being a part of LWP has allowed me to create a practice that lets me create the life I want. I'm a solo attorney in Anchorage, Alaska who is grateful every day to go to work, knowing that I have the whole LWP community behind me. I tell my workshop attendees, I'm a solo attorney, but it never feels like that in my office, because I can match a face to the people's names on the list serve and I know that the LWP community is only a phone call, email, plane ride, or a retreat away.

Share something about yourself that most people don’t know about you.

I have a weighted hula hoop and arm hoops from Canyon Hoops in Portland, Oregon. Hula hooping is a great sport.

What is your favorite book and how did it impact your life?

I'd have to say the book Jesus Calling by Sarah Young; the Bible; Miracles Happen, by Mary Kay Ash; and 90 Days on the Path to Success, Building Health, Wealth, and Abundance by Lora Newman, M.S. I'm continually learning how to live my life and including God in it. These books and people, Lora Newman, are helping me have a more fulfilled life.

In Unexpected Trust Fight, A Meaningful Victory

June 16, 2016

by David Zumpano with 2 Comments Asset Protection Legal Technical

An individual entered the nursing home with no pre-plan. The daughter, the power of attorney, contacted Mike Goss’s office for a plan. As he has successfully done many times in the past, Mike created an asset protection plan for the new nursing home resident using an MIT trust. The penalty period was correctly calculated and a Medicaid Compliant Annuity was purchased to pay through the penalty.

This is where the “typical” part of Mike’s typically successful Medicaid application ends. Because, unlike countless other applications he had submitted using the same format and planning tools, this patient’s application was denied. It was denied under the premise that, because the patient could become the trustee, she therefore had access to the principal of the trust.

At the desk review, documentation was submitted stating that the trust, under no uncertain terms, allows the trustee to be a principal beneficiary. It was further submitted, though not necessary, that although the woman could not ever be a beneficiary, she also could not be a trustee, as she was admitted to the nursing home in an incompetent state.

After losing at the desk review, Mike moved forward to the Administrative Law Judge. Surely when the case was placed in front of an attorney, it would be determined that the desk worker simply did not understand a trust that had full force of the law and had been submitted and approved by the Medicaid Agency many times.

In the interim, the Lawyers with Purpose team, headed by Dave Zumpano and LWP members from the state of Indiana, met to go over the legal arguments supporting the long use of the IPUG trust in Indiana. However, it was determined that in all likelihood this case would be overturned by the ALJ. The ALJ did not feel the same way. He ruled that the trust was an available resource because the grantor could be the trustee.

Mike was forced to file for judicial review of the denial, and the case was moved over to the FSSA attorney. Using the law review article written by Dave Zumpano, POMS and state rulings, Mike invested time writing a brief for the hearing. Months went by as the FSSA attorney “attempted” to get the records from the administrative hearing. Mike tried to negotiate with the FSSA attorney to no avail. Right before the hearing date, Mike was asked for an extension by the FSSA attorney, with the reasoning that they may be able to negotiate a settlement. A few weeks later, Mike was contacted and asked to write an Order. He had won the appeal with no judicial hearing – a year after his client applied for Medicaid.

Mike’s due diligence paid off and his client received the Medicaid benefits she was legally entitled to. His advocacy for his client not only got her on Medicaid but protected the MIT trust as a planning tool for all attorneys in his state moving forward. Had he not kept fighting for what the law allows, bad interpretation by a Medicaid desk worker could have closed an entire avenue of planning for countless applicants in the future. Thank you Mike Goss for being a tireless advocate for not only your clients, but for all elderly in your community and state.

If you want to learn more about becoming a Lawyers With Purpose member give us a little information about yourself. You will then be able to download the Membership Brochure and learn more about our membership benefit options.

Kimberly Brannon, Technical Legal & Software Trainer – Lawyers With Purpose

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World Elder Abuse Awareness Day

June 14, 2016

by David Zumpano with 2 Comments Legal Marketing Legal Technical Systems & Processes Team Building

World Elder Abuse Awareness Day is certainly one we all wish did not require special attention on our calendars. Unfortunately, it does. Every year an estimated 5 million older Americans are victims of elder abuse, neglect, or exploitation. And that’s only part of the picture: Experts believe that for every case of elder abuse or neglect reported, as many as 23 cases go unreported. Elder abuse can take many forms: verbal, physical, financial. Today is the day we as advocates for the elderly can take a moment to remember a few steps we can take for our clients to discover and stop elder abuse.

First, we must listen to our clients. Clients are often brought into our office by their children or another family member. As part of our ethical practice, we should always take an opportunity to speak to our elderly clients alone, explain to them the confidential nature of our attorney-client relationship and allow them the opportunity to tell us any information they may not be comfortable disclosing in front of the person who brought them into the office. Affording our elderly clients the opportunity to confidentially trust in us can often bring feelings and issues to the table that could otherwise go unnoticed.

Second, we can recommend that caregivers find the necessary time to take care of themselves. Caregivers are full-time nurses, cooks, housekeepers, and sitters. Statistics show that a large percentage of elder physical abuse takes place because of caregivers feeling overwhelmed. We can gather information about caregiver support groups in our area and provide that list to the caregivers entering our office. Providing information and understanding to caregivers allows them to know that our offices are there for them when they reach a point where they feel they cannot continue on.

Third, we can monitor the trusts created for our clients as Trust Protectors. This is a wonderful way to use the LWP maintenance plans to benefit the clients we love. As Trust Protector we can assure that the assets our clients worked so hard for are being used as they intended and in a fashion that represents their best interests. When a trustee is abusing his or her authority, we can step in and protect the assets our clients have entrusted us to protect.

Finally, we can educate our communities. We can reach out to community groups and organizations and speak to them about the signs of elder abuse, the importance of caregivers’ own health and well-being, the standards Attorneys-in-fact and Trustees are held to, and what signs to look for in our loved ones who are being cared for outside of the home. We can arm clients and community members with the names of their local ombudsman and elder abuse agencies.

So today, I hope each of us takes the opportunity to think of one thing we can do to stop elder abuse. Wouldn’t it be nice if this was a day we never have to “celebrate” again?

If you want to learn more about becoming a Lawyers With Purpose member, click here and give us a little information about yourself. You will then be able to download the Membership Brochure.

Kimberly Brannon, Esq., Software and Legal-Technical Trainer – Lawyers With Purpose