Lessons From Los Angeles

March 31, 2014

by Lawyers With Purpose with No Comment Systems & Processes VA

California is known for being different – a place where stars rise and fall every day, working hard to make a name for themselves, then smearing it all over town.

How does this relate to your VA benefits law practice?

I spent four days in L.A. in an effort to interview a big name who would propel my TV show, "Senior Salute," to new levels. The better the show is, the more it can help a broader audience of caregivers and people who are aging.

I had a date for the interview, but no set time. I spent time and money to be present for the meeting, even hiring a local makeup artist to come to my hotel to dress me up. The interview didn't happen. So, why was I there for four long days when I could have been with my family or at the office?

My agent strung me along with little to no communication. It wasn't intentional, but it was frustrating nonetheless.

And it raised a question: How often do you string your clients along without communicating?

I arrived on a Tuesday night for a Wednesday interview. No word from my agent until 11:23 a.m. Wednesday saying, "Not today." At 8:16 p.m., new message received: "Just heard back, we are in for Friday afternoon." The next day, Thursday, February 27, next message, "Are you here tomorrow? They are getting us in about 3:00." Friday morning, no news. I call for a status and my agent tells me we are still only about a 50/50 chance. By 3:00 I knew there was no interview, but not because my agent told me, because if there had been one I would already have received my special pass. Instead, I used a ticket I got on the Internet to watch from the general audience the live filming of a show that night, featuring my big-name star. No VIP status.

Reading the above, it looks like there was constant communication. And if I had complained to my agent about not hearing from her, she would have argued that she was doing everything she could and telling me everything she knew. The problem, from the client perspective, is that she was telling me projections, possibilities and hopeful deliverables. What I wanted were the details of her efforts, the positive and negative conversations between her and her "contacts," so I could set up my own expectations and not feel so duped when the interview didn't take place.

How often and how detailed are you when communicating with your clients? Only when you have good news? Only when you need something from them? Only when they are calling you?

The VA application process can take an uncertain amount of time, sometimes more than nine months. Getting that monthly check to pay for care is the client's only focus, and you are the means of achieving that. It's very much like getting that interview, with my agent being my vessel. Even when there is no new news, clients want to hear that, which is why our office calls the VA each month for a status and then passes the information to our waiting clients. Just showing the details of our efforts is enough to keep them content, if not yet satisfied with the results.

Thus, my lessons from L.A. include:

1. Set and manage client expectations;

2. Use clear, constant and honest communication;

3. And understand the unspoken gratitude from your clients when they are aware of your efforts.

P.S. While at the show, I even took actions to "do it myself" by approaching the set's floor supervisor to plead my case. One of the worst things that can happen is when clients take matters into their own hands because they have lost confidence in you. It rarely makes a difference in the result. It didn't in mine.

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.”

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How Inheritance Affects VA Aid & Attendance

March 27, 2014

by Lawyers With Purpose with No Comment VA

Receiving an inheritance can be bittersweet for various reasons. First, you are probably sad the person died. You are also probably happy to be receiving money you need or maybe just want. This windfall, however, can terminate your VA Improved Pension benefits, to include aid and attendance.

Wartime veterans are entitled to receive Improved Pension benefits if they are disabled (with non-service-connected disabilities), if they served at least 90 days on active duty, with one of those days during a period of war, and if they have limited income and assets.

An inheritance is considered “income” when received. The income is then annualized over twelve months. For example, an inheritance of $100,000 is received on February 25, 2014. The income is considered as income for VA purposes from that date through February 24, 2015. How does this affect the pension with aid and attendance?

Assume that the wartime veteran, who is 80 years old and living in an assisted living facility because he needs assistance with at least two activities of daily living, is receiving the maximum VA Improved Pension award for an unmarried veteran of $21,107 per year ($1,758 per month). Because the VA pension program is a means-tested benefit, the veteran’s income cannot exceed the maximum annual pension rate, which is $21,107 per year. Thus, the receipt of $100,000 of inheritance, when treated as income, exceeds the $21,107 per year and may cause the benefits to be terminated.

Is there a way to maintain the VA benefit even when receiving an inheritance? Yes, but only if the veteran’s annual income, to include the inherited funds, is reduced based on deductible medical expenses. When considering income for VA purposes, the VA must deduct all recurring, out-of-pocket medical expenses from the gross income received.

To stick with the example above, the 80-year-old veteran receives annual Social Security of $13,200 and no other income. Adding $13,200 to the $100,000 inheritance would total income equaling $113,200 for a twelve month period. During that same period, the veteran pays $7,500 per month for assisted living costs and another $2,000 per month for home health care because he is a fall risk and wanders at night. Thus, his monthly recurring, deductible medical expenses are $9,500 per month, which equals $114,000 per year. When subtracting the medical expenses from income, $113,200 (income) minus $114,000 (medical expenses), the veteran has negative annual income, and thus would continue to receive his VA pension with aid and attendance at the maximum rate.

Therefore, when a client receives an inheritance, know that it does not automatically disqualify him for the pension, but it may require offsetting medical deductions.

Lastly, if the inheritance will cause termination or reduction of benefits, can the veteran disclaim the inheritance so that it passes to someone else? For VA Improved Pension purposes, the answer is NO. Even if the veteran disclaims the inheritance, the veteran has the duty to notify the VA of his right to receive the inheritance. The VA will count the “expected” inheritance as income even if the veteran never personally receives the money or asset. Thus, disclaiming is not a viable option.

Open Enrollment Period To Expire Soon For Same-Sex Couples’ Survivor Benefits – Lawyers With Purpose

February 4, 2014

by Lawyers With Purpose with No Comment VA

In compliance with the repeal of the Defense of Marriage Act, the Department of Defense (DoD) has opened enrollment for the Survivor Benefit Plan (SBP) to retired military personnel who are gay and married. The Survivor Benefit Plan is income that a widow receives when that person's retired military spouse dies. It replaces, up to 55%, the pension the retiree was receiving prior to death. When the military retiree dies, the pension terminates. Without the SBP, the widow could face financial hardship.

Enrollment in the program is not automatic. Retirees or their widows must act before June 25, 2014 to participate in the SBP Open Enrollment Window.

DoD guidance is as follows:

Any claims to SBP spouse coverage for same-sex spouses of eligible participants of the SBP for periods before June 26, 2013, are not valid, as the Defense of Marriage Act was still the law and in effect prior to June 26, 2013. As a result, no SBP premiums for such coverage will be charged prior to that date. Further, no SBP annuity payments for such coverage will be paid for deaths occurring before that date.

Effective from June 26, 2013, a person who becomes eligible to participate under 10 U.S.C. 1448 (a)(1) and is married to a same-sex partner shall have the SBP program applied as for any other married couple under section 10 U.S.C. 1448, including the requirements for spousal consent for less than full annuity coverage of the spouse.

A person who was married to a same-sex partner upon becoming eligible to participate in the plan prior to June 26, 2013, and who had married that same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(3). Such person may not participate at less than maximum coverage described in 10 U.S.C. 1448(a)(3) without the concurrence of the person’s spouse unless they already had provided an annuity for a dependent child. If an election is not received on or before June 25, 2014, full spousal coverage shall be entered and the member shall be responsible for payment of premiums effective from June 26, 2013.

A person who is married to a same-sex partner on June 26, 2013 and has insurable interest coverage under the SBP may terminate the insurable interest coverage and elect spouse coverage. This election must be received on or before June 25, 2014.

A person who was not married upon becoming eligible to participate in the plan, but who married a same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(5). The election must be received on or before June 25, 2014, or the person shall be prohibited by law from making such election.

Generally, a person who is a participant in the plan and is providing coverage under the SBP for a spouse, who later does not have an eligible spouse beneficiary may, under 10 U.S.C. 1448(a)(6), elect not to provide coverage for a new spouse in the event of a remarriage.

For a person who enters into a same-sex marriage after June 26, 2013, the election to discontinue participation under 10 U.S.C. 1448(a)(6) must be made within one year of the remarriage. If a member does not discontinue participation, then pursuant to 10 U.S.C. 1448(a)(6), spouse coverage will resume effective on the first anniversary of the marriage.

If the remarriage took place prior to June 26, 2013, the participant has one year from June 26, 2013 to elect out of SBP. If a member does not make such an election within one year of June 26, 2013, then pursuant to section 10 U.S.C. 1448(a)(6), spouse coverage will resume effective no earlier than June 25, 2014.

Additionally, any such person falling within the parameters of section 10 U.S.C. 1448(g), shall have one year from June 26, 2013, or the date of any marriage subsequent to that date, to elect to increase the level of coverage under 10 U.S.C. 1448(g).

Now that marriage rights are recognized, more benefits are becoming available. However, some, like SBP, have open enrollment periods and deadlines to receive the benefits. To protect your spouse, ACT NOW. Lawyers may want to send a letter to all of their clients advising them of this change.