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Getting the Physician Form Right for Aid and Attendance

January 4, 2016

by Lawyers With Purpose with 6 Comments Estate Planning Drafting Software Legal Technical VA

Purpose of the 21-2680:

The VA form 21-2680 “Examination for Housebound Status or Permanent Need for Regular Aid and Attendance” is used to document the level of care required by a claimant or a claimant’s dependent. The VA form 21-2680 is completed by a physician based on his/her medical evaluation of the patient. The importance of documenting the level of care is two-fold:

To support a claim for additional pension above and beyond the base level AND
To support the need for certain medical expenses.

There are three levels of non-service-connected pension that a claimant may qualify for: base pension, housebound, and aid and attendance. The base pension is the lowest pension that a claimant may be awarded. Additional funds are granted if you can document that the claimant is housebound, and even more funds go to those requiring another individual to assist with at least two activities of daily living (ADLs). The VA also looks at level of care when considering medical expenses to offset income. Therefore, the VA form 21-2680 should document the level of care that justifies the medical expenses being declared. This applies to the claimant’s dependents as much as the claimant. So for example, the VA will not consider the assisted living facility expense for a veteran’s spouse unless a form 21-2680 is also completed for the spouse indicating the need for the facility to assist with at least two ADLs.

Completing the 21-2680:

The VA form 21-2680 is relatively short (two pages) and is to be completed by a third party – that is, a physician. All you need to complete the form is the veteran’s and claimant’s – if other than the veteran – name(s), Social Security number(s), and address. When you are completing the form for a living veteran’s spouse or other dependent, it is that person's name that appears in the field that requests the name of the claimant, even though, strictly speaking, the claimant is the living veteran. When downloaded from the VA website at http://www.va.gov/vaforms/, the 21-2680 has no separate instruction pages. It does state its purpose near the top of the first page: “The purpose of this examination is to record manifestations and findings pertinent to the question of whether the claimant is housebound (confined to the home or immediate premises) or in need of the regular aid and attendance of another person.”

Despite the fact that you are not completing this form yourself, you should still review all 21-2680s once completed by the physician and before submitting to the VA so that you can confirm that every field is answered and that further explanation is provided when required by the instructions. Form 21-2680 should be signed by a physician because the signatures of nurse practitioners or physician’s assistants are not acceptable. Errors and omissions of this type should be corrected before filing the claim or you may risk a delay. Most importantly, you should also confirm whether the form 21-2680 does in fact document the claimant’s housebound status or the need for aid and attendance.

Housebound status is documented by the physician’s answer to field 33, “Describe how often per day or week and under what circumstances the claimant is able to leave the home or immediate premises.” A clear indication of housebound status would include a statement from the physician such as, “Patient no longer drives and relies solely on caregivers to attend necessary doctor appointments.” The VA form 21-2680 will support the need for aid and attendance, if it provides clear evidence that the claimant needs assistance with at least two ADLs. Acceptable ADLs are bathing/showering, dressing, eating, getting in/out of bed or chair, and using the toilet. The following are not considered ADLs by the VA: walking, medication administration, meal preparation, and protective environment only. This is very important in the case of independent living facilities, the expense of which will not be considered by the VA unless the 21-2680 documents that such a facility provides a protective environment and custodial care that is supplemented by a third party providing the assistance with two or more ADLs. Otherwise the cost of the independent living facility may be considered merely rent and thus not a deductible medical expense. A clear indication of the need for aid and attendance would be input into box #25, where it asks if the claimant needs a nursing home. The answer to that question may be “no.” However, the physician should write out to the side something like, “Patient needs to live at ABC facility for a protected environment, custodial care and assistance with ADLs.”

Because of the importance of using the right language on the VA form 21-2680, the software developed by Lawyers with Purpose to complete VA claim forms produces a sample VA form 21-2680 with recommended verbiage and other guidance for the most important fields. This sample can be provided along with a blank form to the doctor for guidance with instructions that can be used if the doctor feels it applies. If the doctor does not believe that it applies, it may be that your client simply does not qualify for as high a level of care. You may still be able to file for base pension or plan to follow up with the client periodically to check if medical needs have increased.

What to file with the 21-2680

Other than the regular VA application forms, nothing else is required to be filed with this form. However, if you feel that your completed VA form 21-2680 is weak in areas, but you believe that your client’s medical condition warrants aid and attendance, you can add supporting medical records. This form should be submitted as part of a fully developed claim in order to expedite the processing. As a reminder, you may not need to file a VA form 21-2680 if your claimant is only seeking base pension. And a 21-2680 does not need to be filed if you are filing the VA form 21-0779 because the latter documents that the claimant is in a nursing home and requires skilled nursing care, and thus by definition has a permanent need for regular aid and attendance. This will however not stop some VA adjudicators from requesting the 21-2680 form nonetheless, so we generally request all of our VA clients to get one completed as soon as they have retained us – particularly because it can take some time to get the completed form back from the doctor.

Always remember that this form can be used for both supporting a claim for higher levels of pension and the need for certain medical expenses. Keep those two purposes in mind when you are deciding whether or not the VA form 21-2680 needs to be included as part of your VA claim, and when reviewing their completion by a third party to make sure there are not unexpected results with your claim.

If you want to see first hand how the LWP-CCS Drafting Software works with VA form 21-2680 – along with the thousands of other things it has to offer you're estate and elder law practice – click here to schedule a live software demo.

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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Skilled Nursing at VA Expense

December 26, 2015

by Lawyers With Purpose with One Comment Asset Protection Estate Planning Drafting Software Legal Technical VA

“But I won’t ever need Medicaid. I’ll be in a VA nursing home.” You may have heard this before from a client in your attempts to consider the possible need for Medicaid in a veteran’s estate planning. Hopefully the client will never require skilled nursing care, but the reality is that the VA will only pay for or subsidize veterans who need nursing home care due to a service-connected disability or any vet with a combined service-connected disability rating of 70% or more and who need skilled nursing care. The VA only provides nursing home care for individuals in other categories IF beds and resources are available.

First, what do we mean by skilled nursing care and what exactly is a VA nursing home? Medicare.gov defines skilled nursing care as “Care given or supervised by registered nurses. Nurses provide direct care; manage, observe, and evaluate a patient’s care; and teach the patient and his or her family caregiver.” It goes on to say, “Any service that could be done safely by a non-medical person (or by yourself) without the supervision of a nurse isn’t skilled nursing care.” Title 38, Chapter 1 of the Code of Federal Regulations, which relates to the VA, defines a nursing home as:

(1) Any extended care facility which is licensed by a State to provide skilled or intermediate-level nursing care,

(2) A nursing home care unit in a State veterans' home which is approved for payment under 38 U.S.C. 1742, or

(3) A Department of Veterans Affairs Nursing Home Care Unit. [38 CFR 3.1(z)]

The first type of nursing home is one not affiliated with the VA at all. These are private facilities, and probably the majority of nursing homes in which your clients may reside are of this kind. The second type of nursing home is a state veterans’ home that is owned, operated and managed by the state, but must be formally recognized and certified by the VA on an ongoing basis. The state, however, determines the criteria for admission, even though the facility may receive funds from the VA to help subsidize the cost of care to veterans. The third type is what is commonly called a VA nursing home, even though the VA doesn’t call them nursing homes anymore. The VA introduced the term “Community Living Center” and seeks to make the nursing home as much as possible like a real home.

As stated earlier, only veterans with both a documented need for skilled nursing care and who have a service-connected disability that meets certain criteria will qualify for this care at a VA nursing home at no charge. Veterans with non-service-connected disabilities and veterans with lesser-rated service-connected disabilities can apply as long as they require skilled nursing care, but they may be subject to long-term care co-payments.

There are also some other limitations if your client insists on a VA nursing home. There are far fewer of these than the other types of nursing home, and thus there might not be a VA nursing home in your client’s geographical area. State Veterans Homes are fortunately much more common. You can find a directory of State Veterans Homes at the website of the National Association of State Veterans Homes at http://www.nasvh.org/StateHomes/statedir.cfm.

Furthermore, you can’t just decide you are going to a VA nursing home, even if you believe you meet the level of care and rating requirements. There is a process to be evaluated for VA nursing home care. You must first be enrolled for Veterans Health Benefits, which is another process in and of itself and can include an evaluation of income and assets. For example, veterans with non-service-connected disabilities applying for extended care or the Nursing Home Care Unit may be required to complete the VA Form 10-10EC to determine the family's current income and assets. Then, once enrolled with the Veterans Health Administration, you must then be evaluated by a primary care provider or a geriatric specialist for nursing home care.

Another limitation of VA nursing homes is that they generally only accept veterans and not surviving spouses. Some State Veterans Homes do admit surviving spouses and even parents, but that depends on the state. For example, California has veterans assisted living facilities and skilled nursing facilities that will admit spouses, but California also has aggressive estate recovery policies to recoup state funds used to pay for those facilities. Finally, veterans who qualify for VA nursing home care may not always remain qualified. Veterans may be discharged from a VA nursing home without consent when VA nursing home care is no longer needed; for example, if the veteran's needs can be met at home or in a private nursing home close to the family.

If, despite all these hurdles, your client still wants to explore skilled nursing at VA expense or any other long-term care resources of the VA, visit the VA’s webpage at http://www.va.gov/GERIATRICS/index.asp to find information related to geriatrics and extended care.

As we approach the end of the year, we want to personally tell you how thankful we are to have you as a subscriber of the LWP Connection blogs and newsletter. Whatever the reason is that you stay connected with us each week via email (i.e. substantive law training, marketing assistance, practice management tips)…we are glad you are here

Yet, as you work on your practice goals and plans for 2016, please know that the guidance and mentorship you receive here is only THE TIP OF THE ICEBERG of what we offer at LWP.

We want these same results for YOU in 2016! It’s time to check out what becoming a Lawyers With Purpose Member would look like for you and your practice. If you’re even a little curious about what we offer in the Lawyers With Purpose program and how becoming a member will forever change your practice, you owe it to yourself to spend a few minutes reading through this page: www.joinlwp.com.

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

VA Pension Changes Not Likely To Occur Until Spring: How To Prepare Our Veteran Clients

December 9, 2015

by David Zumpano with No Comment Asset Protection Legal Technical VA

In February 2016, the Veterans Administration was set to enact new rules that will limit the availability of pension resources to thousands of veterans in need of care across the country. The February enactment of the new rules was based on information provided on regulations.gov. However, the most recent insider information suggests that the earliest we may see the final rule announced is Spring 2016. Regardless, changes are coming and as elder care attorneys and strong advocates for the senior community we must quickly align our practices with the new VA rules to provide our clients with the optimum result under the changed rules. Currently, the proposed changes to Title 38 of the CFR, include several items worth note.

First, while the current rules allow a veteran or his widow to exempt “reasonable” land as a home place, whether the veteran or widow live there or not, the new rule will limit the home place exemption to 2 acres or less. This will certainly have an impact on farmers and those living in the more rural areas of the country.

Second, under the current rules, information and regulations regarding the deductibility of independent living facilities is contradictory to say the least. Currently, there is enough indication by the VA that as long as a doctor states that the applicant is in need of custodial care and assistance with at least two activities of daily living, an argument can be made that the independent living facility fees should be deductible medical expenses. Under the January 23^rd changes, this “loophole” will be sealed and no independent living fees will be deductible medical expenses.

And, lastly, and most importantly, the proposed rules impose a 3 year lookback for all transfers made for less than value AND subject the applicant to a penalty period of up to 10 years for said transfers. Among the penalized transfers, transfers to trusts and funds converted to annuities are expected to be included.

Where does this leave us as trust and elder care planners? How do we move forward under the new rules? In order to ascertain the answer to these questions, we must evaluate the proposed rule changes along with the rulings the VA has issued on the availability of trust assets.

Currently, there are a number of VA Office of General Counsel rulings indicating what trust assets are not attributable to the veteran. Among these are trusts in which the veteran is the grantor and trustee, but all current and future interest in trust assets and income vest in the veteran’s child or grandchild (Op. G.C. 5-62 (3-2-62), VAOPGCPREC 73-91 (12-17-91)); testamentary trusts established for the benefit of the veteran over which the veteran has no personal control or discretion (VAOPGCPREC 72-90 (7-18-90)); and, third party trusts in which the veteran is an income beneficiary but all trust corpus vests in the trustee (VAOPGCPREC 64-91 (8-9-91)). Another ruling expressly states that any first party supplemental needs trust established by a competent veteran or his fiduciary will count as an available asset to the veteran (VAOPGCREP 33-97).

To indicate the importance of the grantor-trustee not having the authority to access income for himself personally, we can look to a recent VA decision as a case study. A lawyer filed an income only trust (NOT control only) with the veteran as grantor and income beneficiary in November, 2014. The case was denied almost immediately in December 2014. The basis of the denial, while no law or general counsel opinion was provided, was that all assets in the trust are countable assets because the veteran “receives net income of the trust.”

Where do the new rules leave us as planners? As LWP attorneys, we have an arsenal of trust plans available to assist veterans and plan for future Medicaid eligibility at the same time. First, there is the traditional plan that LWP has recommended for years. The home and land can be placed in a My Income Trust (MIT). The MIT is an irrevocable pure grantor trust in which the grantor maintains control and income. We move the home place into a MIT because it is an exempt resource and a low basis asset, allowing us to keep the step up in basis at death and maintains the lifetime exemption of $250,000 under the IRC Code Section 121 at the sale of the home. When the home is sold, the principal from the sale is owned by the MIT and does not then disrupt the grantor’s benefits eligibility. To be extremely cautious, some practitioners will put language in the MIT stating that upon sale of the home, the proceeds therefrom are to become part of another trust, generally a CGT or TAP, in which other assets are placed. Bear in mind that if the home sits on over 2 acres, any land beyond the 2 acres is not an exempt resource under the new rules. So, in that situation, it may be better to place any land over 2 acres into a trust in which the grantor has no income rights. It is not recommended by LWP that any other assets, other than the home place and up to 2 acres of land be placed in the MIT at this time.

After the home is placed into the MIT, the remaining assets can be placed in a CGT (Completed Gift Trust) or TAP (Tax All Purpose) trust. These are both non-grantor trusts. When dealing with veterans benefits, it is more typical to use a CGT trust than a TAP because the CGT does not include the Crummy Powers and GST language the TAP does, and these inclusions are generally not necessary as a person planning for VA benefits does not generally need the estate tax resources the TAP offers. Placing the liquid assets over $80,000.00 into the CGT will start the lookback period under the new VA rules. The CGT has been used by Victoria Collier, and many members, as a fool proof planning tool for VA benefit eligibility. The grantor is not the trustee, has no access to income or principal and the gift is completed for tax and planning purposes.

Further, it is clear that the rules as written do not exclude us from using a FIT to hold client assets. Well planned use of the Family Income Trust (FIT) should not only get a client on VA benefits, but will also qualify them for Medicaid in every state. The FIT, a control only trust, is a grantor trust used when a client has enough income to live comfortably on. The client can move assets into the FIT and remain the trustee. While the grantor/trustee has complete control over the assets in the trust, he personally has no access to the principal or income from the trust. The grantor can keep the assets within his taxable estate for IRS purposes, but has NO access to the corpus or income from the trust for public benefits planning purposes. While the VA has not appeared to have issued an opinion based directly on the use of the LWP FIT, it is clear their issue has lied 100% with the grantor having access to the income thereby making the FIT (a control only trust) a viable and useful planning tool.

If you're a Lawyers With Purpose member, I encourage you to listen to the webcast Dave Zumpano and Victoria Collier did last week, located on the Lawyers with Purpose website. And, if you're an estate or elder law attorney, please join Dave Zumpano, Victoria Collier, Sabrina Scott (Director of VA Services, LWP) and me on Monday, December 14 at 4:00 pm eastern as we have a panel discussion of the 2016 VA changes, VA planning and accept your questions. It is our duty as the leading estate planning attorneys in the nation to be prepared and educated on the VA changes coming in 2016, and we at LWP are excited to make sure all of our members are ready and educated when the changes take place.

Registration Link: https://attendee.gotowebinar.com/rt/8232313303938319617

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

From Pat Summitt to Robin Williams to Glen Campbell: Understanding the Growing Alzheimer’s Epidemic

November 23, 2015

by Roslyn Drotar with No Comment Legal Technical

Pat Summitt, arguably the greatest college basketball coach of all time, would have been described by those who knew her as a focused, opinionated leader and an athlete with an uncontrollable desire to compete and win. In 2012, I had the opportunity to meet Pat at the National Alzheimer’s Association Dinner in Washington D.C. She was as determined as ever to fight the disease that had taken her memory starting at the age of 58, but she stood back, timid behind her son, who spoke for and guided his mother throughout the evening.

Glen Campbell may be the most powerful public reminder of a haunting, stigmatic disease. Diagnosed in 2011, Campbell brought Alzheimer’s and dementia awareness to the forefront of political debate by publicly announcing his diagnosis and continuing to appear in public as his memory faded away. To date, Campbell can remember very little about those around him, but his wife states that he can still play the guitar.

Over the last several years, we watched and read celebrity gossip sites with great interest as Robin Williams seemed to struggle with various medical diagnoses, from mental illness to Parkinson’s disease. Robin, unbeknown to most, had been planning to enter a care facility when he died. It was only after Robin passed away that doctors found he had lived with Lewy Body Dementia.

Certainly, the loss of a person whose life is as large and bright as that of Robin Williams ripples through a culture. His wife’s bravery in coming forward to speak of his silent, undiagnosed struggle with Lewy Body Dementia opened the door for us and our clients to ask questions about the growing problem of dementia plaguing our society. As November is Alzheimer’s and dementia awareness month, it is a good time for us to take a look at this epidemic and ask ourselves what we can do as attorneys, community members and family members of those who suffer with the disease.

The facts and figures surrounding Alzheimer’s and dementia are staggering. Currently, dementia stands as the sixth-leading cause of death in the United States, and it is the only cause of death in the top 10 that cannot be prevented, cured or slowed. One in three seniors die with some form of dementia, and two-thirds of these sufferers are women. Despite the widespread growth of Alzheimer’s and dementia, only 45 percent of those who suffer are currently correctly diagnosed with the disease.

Not to be overshadowed are the costs Alzheimer’s is inflicting on our healthcare system. In 2015, dementia care will cost our nation $226 billion. By 2050, these costs are predicted to rise as high as $1.1 trillion. With several state Medicaid programs struggling to stay afloat, and the number of institutionalized sufferers increasing daily, the United States is staring in the face of a major healthcare crisis.

As elder care attorneys, we must inform our clients of the fast-growing effects of Alzheimer’s and dementia, of the ability of these diseases to strike at younger ages, and of the complete disregard the diseases have for overall health and socioeconomic lines. While it is important that legal advice is sought immediately upon diagnosis of a dementia-related disease, due to the lack of proper diagnosis, it is also essential that every family move forward with estate plans at younger ages. Having a proper plan in place can in small part reduce the grueling toll this disease has on families.

As strong, educated voices for the elderly and aging populations, we can take active roles in requesting that Congress fund the National Alzheimer’s Plan and hold our elected officials accountable for their actions as science moves forward in seeking a cure for this disease. In honor of Alzheimer’s Awareness Month, the National Alzheimer’s Association is asking all people to sign a petition to all presidential candidates in the next election asking that they announce their plans to fund research for this disease. The petition is available on their website at act.alz.org.

As a member of the Lawyers with Purpose community, it brings me such joy to hear the stories of our members and the countless ways we give back to our local communities through volunteerism and financial support. Continuing our personal support for funding the fight against Alzheimer’s is an invaluable way for us to give back. As November is Alzheimer’s Awareness Month, there is no better time to ask ourselves what we can do, as individuals, as attorneys and as loved ones of those who suffer, to help find a cure for Alzheimer’s and dementia.

If you want to experience first hand what it's like to be a Lawyers With Purpose member, and feel the synergy and community, join us this February 22nd – February 26th for our Tri-Annual Practice Enhancement Retreat in Florida. Click here for the full agenda and reserve your spot today. We're filling seats quickly and early bird pricing ends soon so grab your spot now!

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

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When Clients Die: VA Accrued Benefits Claims

October 2, 2015

by Lawyers With Purpose with No Comment Legal Technical VA

It happens more often than one would like – claimants dying before the VA approves their claim. What do you do when this occurs? Is there anything you can do to preserve the benefit your firm worked so hard to obtain for the client, or does the claim die with the claimant?

The answer depends on two factors: 1), whether the claimant has a surviving spouse; and 2), how far along in the process the VA claim was on the date of death.

It matters if the claimant has a surviving spouse or other dependent, because that individual may be able to take over a pending claim as a substitute claimant. Section 5121A, (a)(1) of Title 38 of the U.S. Code regarding Substitution in Case of Death of Claimant states, “If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121 (a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.” In the case of the death of a veteran, the living persons who would be eligible to receive accrued benefits would be, in this order:

The veteran’s spouse;
The veteran’s children (in equal shares);
The veteran’s dependent parents (in equal shares).

In the case of the death of a surviving spouse or remarried surviving spouse, the benefits would be payable to the children of the deceased veteran, and in the case of the death of a child, they would go to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension. This type of substitution is requested by filing a VA form 21-0847 Request for Substitution of Claimant upon Death of Claimant. This form must also be accompanied by the actual application for accrued benefits. There are two VA forms that are used to apply for accrued benefits: the VA form 21-534EZ and the 21-601. The VA form 21-534EZ has multiple uses, one of which is applying for accrued benefits for the surviving spouse or other dependent of a deceased claimant.

The VA form 21-601 is solely for applying for accrued benefits, as its name “Application for Accrued Amounts due to a Deceased Beneficiary” makes clear, but it is intended for those who are not a surviving dependent of a deceased veteran or other claimant. The prerequisite for this type of claim is that the person seeking accrued benefits must have paid or owe for the claimant’s last illness and burial expenses out of their own pocket. As described in the VA Fact Sheet on “Accrued Benefits and Substitution,” “If there are no living persons who are entitled to accrued benefits on the basis of relationship, VA will pay accrued benefits to reimburse the person(s) who paid for or who are responsible to pay for the Veteran’s last illness and burial expenses. . . . The amount of accrued benefits payable as reimbursement is limited to the actual amount of expenses paid, and the amount of accrued benefits available.”

It matters also at what point in the process the VA claim was on the date of death, because that can determine whether, in fact, accrued benefits even exist. Per page 5 of the directions for VA form 21-534EZ, accrued benefits are benefits that “were due the veteran based on existing ratings, decisions, or evidence in VA's possession at the time of death, but the benefits were not paid before the veteran's death.” It may seem obvious, but if nothing has been filed with the VA, there is no such evidence and thus there are no potential accrued benefits. This is another very important reason why you should file a claim as soon as a client qualifies.

This would also seem to suggest that if only an Intent to File/Informal Claim has been filed, accrued benefits might not be payable. Fortunately, this should not affect the surviving dependent of a veteran as long as they are eligible in their own right for VA death pension and file within a year of the death of the veteran. The VA should grant accrued benefits as well as award death pension back to the month of the veteran’s death, regardless of what was on file with the VA at the time of death. For an unrelated third party, it is unclear whether the VA will consider a VA form 21-601 after the filing of an Intent to File/Informal Claim, but before the filing of the formal claim. However, be sure to supply the VA form 21-527EZ with any accrued benefits claim if that form was never filed with the VA.

If a client dies after the formal claim has been filed, but before the receipt of funds in the claimant’s account, an accrued benefits claim can be submitted even if the VA has not started processing the claim. As long as the information on file with the VA supports the deceased claimant’s eligibility, benefits retroactive to the original effective date could be claimed. Again, the identity of the survivor will determine what form is used: the 21-534EZ for a surviving dependent of the claimant, or the 21-601 for all others, including unrelated third parties.

Given that there is no way to control if and when your client dies, how do you prepare your firm as well as your client’s family to deal with such unfortunate circumstances? The best way is to arm yourself with the knowledge of the options at every stage in the VA claim process when a claimant dies. Also, remind your clients at every stage to keep you informed of any decline in the claimant’s health. That way, when your firm gets that phone call or email with the bad news of a client’s death, you will be ready to guide your client’s family in the right direction to preserve the benefit that that client did not live to receive.

Did you know we offer FREE "VA Tech School" the first Wednesday of every month! Join us Wednesday, October 7th at 12 EST where Victoria L. Collier will be talking about "Denied Benefits Due to Transfers of Assets: How to Appeal and Win." Click here to register.

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

Focus on Forms: Third Party VA Forms – the 21-22a and 21-0845

September 29, 2015

by Lawyers With Purpose with 5 Comments Estate Planning Drafting Software Legal Technical VA

This post is an installment in the Focus on Forms series, which considers and discusses some of the most common forms associated with Department of Veterans Affairs (VA) pension claims. The goal of this post – like all those in the Focus on Forms series – is threefold: to define the purpose of the forms; to discuss how they should be completed; and to recommend what to file with these forms. Today’s subject is the forms related to third parties that may be involved in a pension claim, specifically, the 21-22a and the 21-0845.

Purpose of the 21-22A and the 21-0845

The VA forms 21-22a and 21-0845 are used to establish representation of a claimant by a third party and authorize the release of information to a third party, respectively. The VA does not recognize Powers of Attorney and will only speak or release information to a claimant unless a third party has been recognized by the VA as the claimant's authorized representative or recipient of personal information. The only other person who would be able to communicate or obtain information from the VA regarding a claimant would be the person appointed as fiduciary after an award has been adjudicated and when a claimant has been deemed incompetent. These forms do not have any impact on the processing of the VA claim other than to identify to whom the VA can disclose information. If there is no third party representing the claimant, these forms do not need to be submitted to the VA.

Form 21-22a is entitled, “Appointment of Individual as Claimant’s Representative” and is to be used by accredited attorneys, accredited agents, private individuals, or service organization representatives who want to be recognized in the “preparation, presentation, and prosecution of claims for VA benefits for a particular claimant.” It is a two-page form with instructions embedded in the fields. The individual named on this form should be copied on all correspondence issued by the VA regarding the claimant.

Form 21-0845 is the Authorization to Disclose Personal Information to a Third Party and was recently updated by the VA. The current version is dated May 2015 on the lower left corner of the form. The new version is available in the latest release of the Lawyers with Purpose VA software. It consists of a single page with an introductory first page of general information and specific instructions. It is used to identify non-accredited third parties that can be given information about the claim, but it does not imply that these parties in any way “represent” the claimant. For example, a child, home health care company or assisted living facility may be listed as having authority to obtain information. Note that forms 21-0845 signed by VA beneficiaries who have been deemed incompetent will not be accepted. Therefore, it is best practices to have the claimant sign this form before submitting a claim for benefits, which is a time frame wherein the VA presumes the person is competent.

Completing the 21-22a and the 21-0845

Both of these forms are fairly straightforward. Per the Respondent Burden field in the upper right corner of these files, they should each take no more than 5 minutes to complete. This is an accurate assessment. What is likely to take more time on the VA form 21-22a is getting all the necessary signatures in the appropriate places. It can be confusing, but the claimant and the representative each sign twice – once on each page. Most of the other fields are self-explanatory. An important feature that may easily be overlooked on the 21-22a is a cleverly hidden field that has no number. It is on the second page in the section called “Conditions of Appointment.” The very fine print here indicates that if the individual named on the form as representative is “an accredited agent or attorney, this authorization includes the following individually named administrative employees of my representative.” In the space that follows, you may list all such non-accredited team members who may need to call the VA regarding the status of a claim.

The 21-0845 has similar fields to those in the 21-22a, with the notable exception that the latest version of the 21-0845 now sports the individual character boxes to aid the VA in computer processing of forms at intake. The 21-0845 also allows you to select a security question and answer that you may need to provide as confirmation that you are the person identified when you telephone the VA.

What to file with the 21-22a and the 21-0845

There is nothing in particular that is required to be filed with either of these two forms. They both should be submitted with an Intent to File a Claim or the Fully Developed Claim. They should also be included with any other correspondence you may need to address to the VA, particularly when the third party is the individual signing the correspondence.

The individual appointed as the claimant’s representative on the form 21-22a will automatically be authorized to receive the information accessible by the form 21-0845. So you may ask, why file the 21-0845 in addition to the 21-22a? Some VA call center agents employ the extra security layer provided by the form 21-0845 and will require the response to the security question before they release any information over the telephone. Furthermore, you cannot have more than one 21-0845 on file with the VA at any one time. By filing one with your client’s claim, you ensure from the outset that your firm is the only third party with access to that claim information. Subsequent 21-0845s that are filed will not replace the active one on file until the claimant has notified the VA that he/she wishes to withdraw it.

As mentioned above, neither of these forms will directly affect the adjudication of a pension claim, but when in place they allow you to manage the claim more effectively. Without the powers these forms bestow, you are dependent on receiving information secondhand and perhaps not in a timely manner, which can in turn lead to unnecessary denials.

If you want to sharpen your VA technical legal saw, we offer a free "VA Tech School" webinar the first Wednesday of every month. Click here and join us on Wednesday, October 7th at 12 EST. This month's topic is "Denied Benefits Due to Transfers of Assets: How to Appeal and Win!" Register 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; and Co-Founder of Lawyers With Purpose, www.LawyersWithPurpose.com.

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High Energy / Low Energy

September 16, 2015

by Lawyers With Purpose with 4 Comments Coaching & Implementation Legal Marketing Legal Technical Team Building

Day One: My family walked a mile to school for the fourth day of kindergarten. Since I was going out of town, the hugs were a little longer than usual. Before heading to the airport, I also walked my dog, since it would be his last one for three days. The flight was uneventful. I had rearranged my flight to arrive early so I could visit with my aunt in the hospital, where she is undergoing treatment for a brain tumor. Without treatment, the prognosis is six months to live. With treatment, it is 18 months. During our visit, I had to excuse myself for a very challenging business teleconference. When I returned, my aunt was tired. I sat on her bed looking into her eyes for probably the last time; both of us were crying. An hour later, I was overlooking the beach while having dinner with a colleague. Then I went to bed.

Day Two: I awoke early to review my aunt’s financial situation and create a written plan, like I would for any client, to provide to my cousin over breakfast. We discussed ways to initiate difficult conversations. “Are there any specific goals you want to accomplish in the next six to 18 months?” “Is my aunt making choices based on what she wants, or what she believes others want?” “Where would she prefer to die, in a facility or at her home?”

Breakfast lasted right up until it was time for me to give a 45-minute presentation on veterans benefits for over 100 lawyers. I stepped onto the stage and delivered a strong, fluid speech. Then, I immediately rushed to the airport to catch a flight to New York by way of Georgia, my home state, but I couldn’t stay long enough to see my family. Instead, I spoke with them via Facetime, and my daughter cried because she wanted me to tuck her into bed. I arrived in New York just in time to slip into bed. Sleep was restless as usual, since I have insomnia.

How many highs and lows do we have throughout a day? The two back-to back days described above are typical (other than finding out my aunt has a limited time to live). They are typical for me, for my law office team members and for my clients. We all go from one emotion to the next, from successes to challenges, from elated to deflated in moments, without taking time to absorb and reflect. Without taking time to celebrate or grieve. We just stack our emotions on a pile like smashed cars to be recycled.

How does running from one event to the next affect our work product? Our customer service? Our communication and relations with others? Our profitability and success?

Negatively.

What can we do?

First, recognize that you are running through highs and lows. When possible, try to group high-energy events together and low-energy events together.

Second, pause between events for five minutes and sit with the residual emotions of what you just endured. If it was a success, celebrate – even if just in your mind you smile and say, “I did good.” Or allow yourself to get upset and release frustration, if necessary, even if just in your mind you scowl and say, “This is not what I intended. I must do better; I cannot let that happen again.” Then clear it away and prepare for the next event, to be completely present and not affected by the prior event.

Third, understand that you are not the only one with days like this. Be there for your team and your clients when they have highs and lows. Support them. Your support will enrich your relationships, which in turn will produce better customer service and work product. Lastly, just slow down and be aware. We see much better when the pace we are traveling is not blurred with speed.

There is still time to register for our Tri-Annual Practice Enhancement Retreat – but on time pricing ends FRIDAY! Click here to register today and join your colleagues for what will prove to be a transformation for you and your team that supports you! Join us October 21-23 in Phoenix for THE estate and elder law fast-track training programs, legal tech focus sessions, collaborative panels, action-oriented keynote by our favorite money coach, personalized Law Firm “Money Plan” development day, and much more!

Registration Link: http://retreat.lawyerswithpurpose.com/

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.

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Communicating with the VA

August 12, 2015

by Lawyers With Purpose with No Comment Legal Technical VA

There is one sure thing when it comes to communication from the VA: They don’t do much of it. And when I use the term “communication,” I don't mean the dreaded, generic form 20-8992 that the pension management centers will sometimes spit out stating that “We have received your application for benefits. It is our sincere desire to decide your case promptly. However, as we have a great number of claims, action on yours may be delayed.”

Substantive correspondence from the VA in regards to a pension claim generally boils down to three or four letters during a typical claim process. If you submit an intent to file a claim on VA Form 21-0966 (which is not actually filing the claim itself), you should receive an acknowledgment as well as directions on how to file a formal, fully developed claim. Once the formal claim is filed, you may receive a request for information. As long as you respond within the allowed 30 days, the claim should remain within the fully developed claim track (which is intended to produce quicker decision times). Otherwise, the next notice from the VA is a decision letter, often accompanied by a rating decision on blue paper. After an approval, there may be some additional letters regarding a proposal of incompetency. Assuming that is resolved, that is the extent of it and the client should not expect any other correspondence.

There are essentially three ways to communicate with the VA: mail/email, fax, and phone.

Mail / Email

Traditional mail is the default way to reach the VA and has the advantage of being traceable, whether you use certified mail with return receipt or prefer FedEx or UPS. U.S. mail is also the default way that the VA will communicate with you. You are promised by IRIS – the Inquiry Routing and Information System, which is the VA’s Internet-based public message management system – that you can use it to ask questions and submit complaints, compliments, and suggestions. You access IRIS by completing an online form at https://iris.custhelp.com rather than by directly emailing an inquiry. You can specify that the VA respond in one of three ways: email, telephone, or U.S. mail.

Fax

Faxing to the VA should be a backup method to mail rather than an alternate. It allows you to respond promptly when a deadline is involved. You should ensure, of course, that some record of the fax confirmation is kept with the file. The three pension management centers have their own dedicated fax lines that were updated in July 2014 to the following:

Philadelphia: (215) 842-4410

Milwaukee: (215) 842-4430

St. Paul: (215) 842-4420

Phone

Calling the VA National Call Center at the number (800) 827-1000 or the pension management centers at (877) 294-6380 may be the most direct way to make inquiries regarding a particular claim. To do so, the proper forms naming you as an authorized caller must be in the VA file. You are warned that calling cold, without an appointment time, will result in a lengthy wait time. It is better to call after hours, when you are prompted to schedule a phone call so that the VA calls you back at a specific date and time. This can be done a week in advance, but slots fill quickly, so keep your schedule flexible. Once you speak to an agent, there is little direct information that they can tell you about a claim other than to state what phase it is in (Development, Decision, or Notification). They may also disclose that a decision has been made or that a request for information is pending, but they will not go into specifics.

The point of following up by phone is to track that a claim has been logged in and that it is moving through the process, even if there may not be much more to learn than that. At the very least, it forces somebody at the VA to look at the claim, and if there is anything off base about the claim, it’s better to know sooner rather than later.

Phone calls from the VA to the client or representative are much less common. Once in a while an employee will call with an inquiry; however, they are more likely to call an assisted living facility or family member for confirmation of some fact, rather than the attorney’s office.

Regardless of the method you choose to communicate with the VA, you must remember that you are often the most vital link for your clients to the VA and often their only way of understanding what the VA is trying to communicate in regards to their pension claim.

If you aren't a Lawyers With Purpose member and want to learn about the nuts and bolts of the proposed VA changes…and what it means for your practice join our FREE WEBINAR on Wednesday, August 19th at 4 EST. Click here now to register.

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 for Wartime Veterans; and Co-Founder of Veterans Advocate Group of America.

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A New Tool for VA Benefits Planning

August 4, 2015

by Lawyers With Purpose with No Comment Asset Protection Legal Technical

Amid all the rumblings of the Veterans Administration proposing to make it harder to qualify for the wartime pension, there is a secret weapon that shouldn’t be affected by the changes. Life Care Funding is an emerging concept wherein a person owns a life insurance policy and sells it to pay for health care. The traditional model, life settlements, paid a person who had a terminal illness a nominal sum to do whatever they needed or wanted to do with the funds. The new concept, Life Care Funding, is different.

With Life Care Funding, life insurance owners do not need to have a terminal illness. However, they must need immediate assistance with activities of daily living or regular supervision due to cognitive decline. These are the same standards as when a person makes a claim against traditional long-term care insurance. Another difference is that, once the policy owner sells the policy to create the life care fund, the proceeds are set up in an irrevocable custodial account that can only be distributed to third-party caregivers. A certain percentage is also allocated toward burial, cremation and funeral expenses. The custodial beneficiary (prior policy owner) directs to whom and how much of the life care fund is paid each month. The payment structure is flexible and can change with the changing circumstances of the patient in need.

How does this help with VA benefits planning?

Qualification for the wartime pension with aid and attendance is dependent on having low assets and low income. The cash value of any life insurance policy counts against the net worth standard to qualify for the wartime pension. Once the policy has been converted to a life care fund, the insured is no longer the owner of the policy; the policy was sold for fair market value, and the funds are placed into an irrevocable custodial account that cannot be converted to cash and wherein the claimant has no access and virtually no direct control over the assets. Thus, as a life insurance policy, it harms VA eligibility, but as a life care fund, it should be exempt.

A complete 19 page legal analysis of why life care funds should be exempt under the current laws and the new proposed laws will be presented on August 5, 2015 at 4 p.m. Eastern time. Click here to register for the webinar, “A New Tool for VA Benefits Planning? Legal Analysis of Life Care Funding and the VA Pension Benefits Laws.”

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The Wisdom of Never Giving Assets to the Kids

July 7, 2015

by Lawyers With Purpose with 2 Comments Asset Protection Estate Planning Drafting Software Legal Technical

Invariably, in every workshop I have presented to clients over the last 10 years, I've been asked the question, “When should I give my house (or other assets) to the kids?” My answer is quick, swift and with a smile: “Never. In fact, you never want to give anything to anyone you love.”

That usually gets their attention and draws a frown – until I explain. Giving assets to your children defeats the very thing the client is often attempting to accomplish. When I ask why they want to give their assets to the kids, the response 99 percent of the time is that they want to protect the assets. I respond, so the way you protect your assets from your creditors and predators is to give it to your kids so those assets are subject to all their creditors and predators? Who has more creditors and predators, you or your kids? And then I get the blank stare.

The key element when doing asset protection planning from general creditors and predators, or for Medicaid eligibility and long-term care, is to be properly informed of the options available. Not only can transfers in assets to the kids subject your assets to risk by the kids' bankruptcy, divorce, lawsuits, and even your child's death, but it could have adverse income tax consequences.

Transfers to children are at a “carry over” tax basis to them; that is, they inherit the asset at what you paid for it. This could be extremely detrimental in the case of highly appreciated assets. In fact, it creates an income tax on sale that would not otherwise have been due, had the client held it to death and then transferred it to the children. The key point is to know how to get the best of both worlds.

That's where the IPUG™ protection trust is so essential. The Irrevocable Pure Grantor Trust™ allows the grantor to be the trustee, to benefit from the trust (to the extent they so desire while understanding the impact) and to be able to change their beneficiaries or any other provisions they desire. This is very empowering to clients who traditionally believe once you create an irrevocable trust, you can't change it, you can't benefit from it, and you can't control it.

In fact, you can do all three; it's just in how you do it. The core distinction in an IPUG™ trust is that you must give up only what you want to protect. For example, if you want to protect your assets, you must give up, forever, the right to own those assets. But you do not have to give up the right to control those assets, manage those assets or even get the beneficial interest and use of those assets! The most common way grantors benefit from their assets that they no longer can reach is by living in the house they have transferred to an IPUG trust, or by continuing to maintain receipt of the income and dividends from any cash investments or brokerage accounts in which they have put inside the IPUG™. Most people realize they don't really need the assets; they just need the income produced from them and want to maintain control.

For those who do need access to their assets, they are not candidates for the use of the IPUG™, or any other protection trust. They would use a typical revocable living trust, which accomplishes their estate planning needs and can provide asset protection after death. That's why you never want to give the money to the kids after you die either. One of the greatest advantages seniors have is, after death, the ability to transfer their assets to their children in a trust that the children can control and benefit from any time they want – but creditors or predators can never invade those assets, for the life of the child! This includes the government, lawsuits, divorces, bankruptcies, and even nursing homes.

The money is flat-out safe.

Why would anyone give anything to anyone they love when they can give it to an IPUG trust that protects it for them while they're alive and for their children for their lifetimes after they're gone.

If you aren't a member of Lawyers With Purpose and want to know more about what we have to offer (which is tons of technical legal support) for your estate or elder law practice, register for our Having The Time To Have It All webinar on Thursday, July 23rd at 2 EST. Reserve your spot today to learn more about creating the practice of your dreams.

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