All posts by : Lawyers With Purpose

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.”