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Must-Attend VA Webinar on 3-Year Look Back Changes!

October 27, 2015

by Molly Hall with No Comment Legal Marketing VA

For years we have been talking about whether there would be a look back for transfers with VA Pension claims. Congress introduced bills from 2012-2014, both failing. The VA has, on its own - without seeking Congressional support - issued sweeping changes in the Federal Register that would:

Impose a 3-year look back for transfers of assets, including gifts to persons, trusts or purchases of annuities

Deny claims for up to 10 years due to transfers

Calculate widow’s penalties almost twice as long as veteran’s penalties

Count the home place as part of net worth if the lot coverage exceeds 2 acres

Because these proposed changes affect every elder law attorney and estate planning attorney who has or may have veterans as clients, Victoria L. Collier, CELA, the nation’s expert on VA Pension Benefits is presenting a webinar on Thursday, October 29th at 2EST to discuss these sweeping changes to the laws.

During the webinar you will learn: what the actual changes will be, how to advise your clients between now and when the law changes, and what can be done to minimize the damage.

The estimated date that these changes will take effect is February 2016—only 3 Months away! All attorneys MUST BE PREPARED!

If you do any VA benefits, estate planning or elder care planning at all, you will not want to miss this webinar.

See you there,

Molly Hall

P.S. Even if you have applications that you feel are “SAFE” in the pipeline, they may still be affected by some of the sweeping changes happening in early 2016! Make sure you are on this webinar for your own knowledge and for the benefit/protection of your clients.

CLICK TO REGISTER NOW

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Focus on Forms: Getting Benefits for Widows

October 13, 2015

by Lawyers With Purpose with No Comment Estate Planning Drafting Software Systems & Processes VA

Today’s post is another installment in the Focus on Forms series that considers and discusses some of the most common forms associated with Department of Veterans Affairs (VA) pension claims. The goal of 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 21-534EZ Application for DIC, Death Pension, and/or Accrued Benefits.

The VA form 21-534EZ is used by a veteran’s surviving dependent to apply for non-service-connected pension, Dependency and Indemnity Compensation (DIC), and accrued benefits. The veteran’s surviving dependent may be a spouse, a parent, or a child. This form is the counterpart to the VA form 21-527EZ, however the 21-534EZ can be used to apply for the various types of benefits outlined above, while the 21-527EZ can only be used by a veteran applying for non-service-connected pension. If you are seeking service-connected compensation benefits for a veteran, you would use the VA form 21-526EZ.

When you download the 21-534EZ from the VA website, the document has 11 pages: six pages of instructions and five pages of form. There is much valuable information provided here. The first few pages of instructions explain what is, and how to file, a Fully Developed Claim (FDC), which is a relatively quicker claim process compared to the Standard Claim Process. The remaining instruction pages discuss what evidence you should provide to support your claim, depending on the type and/or level of benefit sought: Base, Housebound, or Aid & Attendance. The last page of instructions also includes information regarding benefits for a helpless child of a veteran, validity of marriages, and the effective date.

There are 13 sections to VA form 21-534 EZ, numbered with Roman numerals. Three of these are labeled “Must Complete,” while the other 10 sections are to be completed only if applicable. You may recall that this is the opposite of VA form 21-527EZ, which has 10 compulsory sections and three optional. The reason for this is partly because the form 21-534EZ can be used for more than one type of benefit, thus some sections only apply to a particular benefit. Another reason is that, since there usually is a prior claim already on file with the VA, there is certain info that the VA already has, and thus it does not need to be provided again. The sections you should complete for death pension are sections I to III, VII to IX, and XI to XII – that is 8 sections total.

Sections I and II are for the veteran’s and claimant’s Personal and Service Information, respectively. Most of the fields here are self-explanatory. If the surviving spouse previously filed a claim with the VA or you already filed an informal claim/intent to file claim, you may have the VA file number to put in field 6; otherwise put “Unknown.” If the VA ever assigned the veteran a file number, the surviving spouse inherits that same file number. Field 13 asks if the claimant is a veteran, oddly enough because if the claimant is a veteran, he/she should be filling out forms other than the VA form 21-534EZ. Field 16 allows you to select which benefits the claimant is seeking, and you may check all that apply. The instructions for Section II Veteran’s Service Information indicate that it need not be completed if the veteran was receiving VA Compensation or Pension benefits at the time of death, because it is assumed that this would already be on file with the VA; however, as incomplete forms are not always received well by the VA, it is recommended that you complete this section despite these instructions.

Section III is for Marital Information and by definition is applicable only when the surviving spouse is completing this form. Completion of this section may make or break a claim, the reason being that with very few exceptions the surviving spouse only has a claim to the veteran’s pension by virtue of marriage. In most cases, if the claimant cannot prove a valid marriage to the veteran, the claim will be denied regardless of how eligible he/she otherwise might be. The next three sections are only required if the claimant is a dependent child (Section IV), the veteran’s parent (Section V), or is seeking Dependency and Indemnity Compensation (Section VI); otherwise they can be crossed off as non-applicable.

The next three sections (VII to IX) are related to finances and are similar to those same-numbered sections in VA form 21-527EZ. Section VII: Net Worth is for reporting all countable assets of the claimant, and any dependents should be listed here as of the effective date. Sections VIII and IX are both for reporting income of the claimant and any dependents as of the effective date. The difference is that Section VIII: Gross Monthly Income should be used to report income that is received in fixed, monthly payments, such as Social Security or retirement pension, while Section IX: Expected Income is for reporting annual amounts of income that are not received in fixed, monthly payments. The effective date is the date that the informal claim or intent to file a claim was filed, or if not filed, the date the formal claim was submitted. Every source of income received by the claimant and any dependent should appear in either section VIII or IX, but never in both.

Section X may be used for reporting unreimbursed medical, last illness, burial, or other expenses; however, if there are many expenses, the VA form 21P-8416 Medical Expense Report can be used, in which case section X is completed by cross referencing VA form 21P-8416. The last page and the three last sections of form 21-534EZ consist of Direct Deposit Information (XI), Claim Certification and Signature (XII), and Witnesses to Signature (XIII). The first two of these sections must be completed and the claimant must sign Section XII, as the VA does not recognize Powers of Attorney. The final section is only applicable if the claimant signed the previous section with an “X,” in which case two witnesses must also sign to vouch for the identity of the signer.

What you file with the VA form 21-534EZ should support the data you entered in the 13 sections of the form. This would include photo identification, birth certificate and military discharge paperwork. More importantly, include marriage certificates, divorce decrees and/or death certificates to properly document marriage to the veteran and the proper dissolution of any prior marriages. The practice in our firm is also to provide financial statements to support the net worth and income as of the effective date reported in sections VII to IX, although this is not required by the VA.

In summary, the VA Form 21-534EZ is the primary application form for a veteran’s surviving dependent seeking death pension benefits, Dependency and Indemnity Compensation (DIC), and/or accrued benefits. It is best practice to complete all three mandatory sections of this form and any of the remaining 10 sections, if applicable, and to provide all documents that support what is declared on the form. Keep up to date with changes to VA forms by updating your LWP-CCS software whenever new releases are available and by checking the VA website regularly.

Did you know we offer a FREE "VA Tech School" webinar every month? Click here to register now for this complementary webinar on Wednesday, November 4th where we'll be talking about all the changes that have happened and will happen to VA Benefits in 2015 and 2016 that may impact how you do VA planning in your firm. Register now to find out what you will miss from the Tri-annual Practice Enhancement Retreat legal-technical focus session “Changes to VA Benefits in 2015/16 and How to Profit From Them”.

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.

The VA Fiduciary Process

October 9, 2015

by Lawyers With Purpose with 2 Comments Estate Planning Drafting Software Systems & Processes VA

What is the VA Fiduciary Process?

The veterans benefits fiduciary process occurs when the Department of Veterans Affairs (VA) has approved a claim but has proposed a finding of incompetency of the claimant. This means that the VA believes the claimant does not have the mental ability to manage receipt of VA funds. To help the claimant with his or her VA benefit, a fiduciary needs to be appointed. The term “fiduciary process” is used to describe what happens from the time the VA approves a claim with a proposed finding of incompetency through the time the VA appoints a fiduciary and releases any withheld retroactive benefits. This process can take from three months to over a year to complete.

When can you expect to encounter the VA Fiduciary Process?

You will generally know from the first meeting with a client or client’s family members whether to expect a proposed finding of incompetency that would require that a fiduciary be appointed. At that meeting, you should note for the file the client’s medical condition, especially as it relates to competency. Another alert is the way that the doctor completes the physician statement (VA form 21-2680). If a claimant has a diagnosis of dementia, and/or if the physician indicates on the statement that the claimant does not have the ability to manage his or her own financial affairs, you can expect a proposal of incompetency by the VA.

What should you do when filing the original claim?

If you expect a proposal of incompetency, include a VA form 21-4138, Statement in Support of Claim, regarding the fiduciary process with the fully developed claim. Your statement should acknowledge evidence of incompetency, waive the right to carry a gun under the Brady Handgun Bill, waive the right to a hearing, and include the name, relationship, and contact information for the person who will be nominated as fiduciary (usually a competent spouse or other family member). The purpose of the proposal of the finding of incompetency is to give the claimant a 60-day due process period to object to this proposal. In submitting VA form 21-4138 acknowledging evidence of incompetency, the goal is to expedite the process by waiving the due process period.

What about after a claim is approved?

After filing the formal claim, you will not hear anything about the proposal of incompetency or the fiduciary process until the approval letter arrives. This letter may state that retroactive benefits are being withheld because a finding of incompetency has been proposed. However, the claimant may also receive a separate fiduciary letter regarding their legal rights during the fiduciary process. The VA will start to pay the monthly awarded benefit shortly after the date of the award letter, but any money owed back to the effective date of the claim will be withheld until a fiduciary has been appointed. Even though you may have already submitted a waiver of this waiting period with the formal claim (on the aforementioned 21-4138, Statement in Support of Claim), you should respond again by re-sending the VA form 21-4138 regarding the fiduciary process. This time, file the statement with the Pension Management Center as well as mail it directly to the appropriate fiduciary hub (the VA department that administrates the fiduciary program).

The law firm generally does not get copied on any correspondence from the fiduciary hub, even when the lawyer is acting as the VA representative. The attorney is kept in the loop for the purpose of the claim adjudication process, but once there is an approval with a proposed finding of incompetency, the fiduciary hub deals directly with the nominated fiduciary. Thus, the representative must rely on the claimant or proposed fiduciary to get information and updates. However, you can call the fiduciary hub as long as you are the VA-recognized authorized representative at (888) 407-0144 for a status update.

Then what?

Then it is a waiting game until a fiduciary hub field examiner contacts the nominated fiduciary to schedule an in-person interview. You should instruct the client to contact you when they have scheduled this interview so you can then provide further guidance as to what they should say or not say during the interview. The nominated fiduciary should expect to provide references, a credit check and possibly a surety bond if the retroactive benefit is large. After the interview has taken place, the fiduciary hub will send a letter appointing the fiduciary. The last action the firm takes is to follow up with the fiduciary to confirm that the withheld benefits are deposited and that the lump sum deposit is correct.

If you're a Lawyers With Purpose, for further information regarding the fiduciary process, especially recommendations regarding the interview and the yearly accounting, log into the members section of the website and take a look at the webinar “VA Tech School – Fiduciary Process”. The Lawyers with Purpose software and systems have an automatic workflow to assist members with this part of the VA application process.

Did you know we are hosting a FREE webinar on October 15th at 5 EST on the VA Proposed Rule Changes. Attend this webinar presented by Victoria L. Collier, CELA, the nation’s expert on VA Pension Benefits and Lawyers With Purpose to discuss these sweeping changes to the laws. At the webinar you will learn the details of the proposed changes, how to advise your clients between now and when the law changes, when we can expect the laws to change and how you can influence a more positive change. Click here to register now.

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.

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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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Don’t Appeal the VA – Find Another Way!

September 14, 2015

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

When a claimant has received an unfavorable decision from the Veterans Administration, the first inclination is to appeal. The appellate process can take years to resolve. Elderly seniors seeking the wartime pension do not usually have years to wait, as death could occur at any time. When a claimant dies, the claim usually dies too. Thus, it is critical to speed up the process to get an approval sooner rather than later.

A preferable alternative to appealing is seeking a Request for Consideration. This is when a claimant requests that the VA reconsider one of its decisions that has not yet become final. A decision becomes final one year after it is issued. Thus, you must file a request for reconsideration within a year of the original decision. There is no specific form to file a request for reconsideration; however, we recommend using VA Form 21-4138, Statement in Support of Claim.

Common reasons to request a reconsideration of a decision for a pension claim include, but are not limited to, the following:

Denial of Pension claim for excess income (or only partial approval)
Denial of Pension with Aid and Attendance
Denial due to excessive net worth
Incorrect effective date of the award

Denial of pension claim for excess income (or only partial approval). To qualify for VA pension, the claimant must meet income limitations. Often, in order to meet the limitations, the claimant has recurring out-of-pocket medical expenses that can be deducted from the income, which then reduces the income for eligibility purposes. When the claim is denied or approved for less than expected, it is usually because either the claimant does not have enough medical deductions or the VA did not properly deduct permissible medical expenses. For example, the VA is to deduct all medical expenses for both a veteran and the veteran’s spouse; yet, the VA often does not deduct the spouse’s medical expenses. In that case, a request for reconsideration is a useful strategy to submit the expenses (again) and request that the VA recalculate the award.

Denial of pension with aid and attendance. When a claimant needs the assistance of another person to help with at least two activities of daily living (bathing, dressing, transferring, eating, incontinence/toileting), or needs the regular supervision of another due to dementia (memory loss), then the claimant can receive a supplemental monthly income called aid and attendance. But, before aid and attendance can be granted, the claimant must submit VA Form 21-2680, Application for Aid and Attendance, completed by their treating physician, to the VA. The form must be filled out with very specific language to meet the VA’s standards. When a claim is denied for aid and attendance, it is usually because the claimant either did not submit this form or the physician did not fill it out sufficiently. Getting a new form filled out properly and submitting it with a request for reconsideration will generally garner an approval by the VA.

Denial due to excessive net worth. To qualify, the claimant must have limited resources. If the VA denies a claim due to excessive net worth, once the assets are no longer excessive, the claimant may submit verification of the reduced assets and request the claim be adjudicated again.

Incorrect effective date of award. When filing for pension benefits, it is important to obtain the earliest effective date possible. The sooner the date, the more money the claimant receives. Under the fully developed claim process wherein the VA requires that the claimant submit all application forms and supporting documents simultaneously, months can go by while waiting to obtain a divorce decree, death certificate or the physician’s affidavit for aid and attendance. Instead of waiting in vain (without getting benefits), the claimant can file an Intent to File a Claim on VA Form 21-0996 to “lock in” the eligibility date. This form should only be filed when the claimant meets all financial and medical criteria but is waiting on supporting documents. Once the supporting documents are in hand, then, subsequent to filing the notice of intent, the claimant will file the fully developed claim. There may be months between the two. Once the VA issues its decision, it may have overlooked the intent to file a claim locking in the effective date and instead award the date from the filing of the fully developed claim. So as not to lose the intervening months, you should file a request for reconsideration with a copy of the intent to file a claim that was previously filed.

Although appeals can take several years to resolve, we are seeing that requests for reconsideration are taking less than six months, often only 30 days, to resolve. This is a much better outcome for the client.

If you want to learn critical information on building a thriving practice while serving those who serve our country, register for our FREE WEBINAR this Wednesday at 12 EST.

Here's Just Some of What You'll Discover During this Complimentary Event…

How and Where to Obtain Quality Clients
How to Present the Value Proposition
What to Charge for Planning
What to Include in Your Engagement Agreement

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.

Lawyers With Purpose Unites With Life Care Funding

September 10, 2015

by Lawyers With Purpose with No Comment Asset Protection VA

Do you ever feel like you don’t know how to help a client? That the traditional planning strategies just won’t work in the situation presented? Here is a common scenario:

Jane, a widow who lives in an assisted living facility, has two adult children who are independent with no disabilities. When Jane’s husband, David, died two years ago, Jane gave each of her children $100,000 without consulting a lawyer. At that time, Jane was living at home and doing well. About six months after David died, Jane began experiencing a series of mini-strokes. The cost of her care is depleting her resources rapidly. The children really want to avoid putting her in a nursing home but are concerned she will need one soon. During your meeting, you naturally raise the possibility of a transfer of assets penalty due to the prior transfers.

If you are like many elder care attorneys, you will likely try to find ways for the remaining funds to stretch out during the penalty period. You may even propose that the children return the gifts if possible. It is not possible.

Is there anything you are overlooking? Maybe a dormant asset you can utilize?

There may be. Have you asked your client if she has life insurance?

Term life, universal life, and whole life insurance policies can be sold to pay for care. In Jane’s case, she has a $300,000 policy. She was considering letting it lapse because she can no longer afford the annual premiums. Instead of letting it lapse, let it work for her to pay for care during the Medicaid look-back period. Assuming a company purchases the policy for 40% of its face value, Jane would then have a fund of $120,000, or $3,333 per month for 36 months, to pay for care during the remaining five-year look-back. Jane’s income, added to these additional funds, will be sufficient to cover the cost of the assisted living facility for three years. At that time, the family can feel comfortable and confident about transitioning Jane into a nursing home and applying for Medicaid, if necessary.

Lawyers with Purpose is proud to announce that we have teamed up with Life Care Funding to assist lawyers and clients in identifying good situations to fund care!

To learn a little more about Life Care Funding for yourself, your team and your clients click here. If you have clients that could benefit from converting a life insurance policy into a long term care benefit click here for the Long Term Care Benefit Qualification Form. Or to learn more this new planning option for seniors, go to www.LifeCareFunding.com. Never hesitate to contact Life Care Funding directly at 888-670-7773 or email info@lifecarefunding.com.

Chris Orestis, CEO, will be sharing more information at the Lawyers with Purpose Tri-Annual Retreat, October 21-23, in Phoenix, Arizona. If you haven't registered yet – we are reaching capacity! Register today before pricing goes up and all seats are filled.

Big Brother is Watching: Fiduciary Accounting

August 19, 2015

by Lawyers With Purpose with 3 Comments Estate Planning Drafting Software VA

What is it?

When the Department of Veterans Affairs (VA) determines that a claimant is incompetent and needs assistance managing their VA pension, it approves the nomination of a fiduciary to do just that. The fiduciary is responsible for opening a dedicated bank account for VA funds only and for spending VA funds according to an agreement that the VA field examiner arranges and approves. In order to ensure that the fiduciary is doing what he or she is supposed to be doing, the VA may require the fiduciary to submit an annual accounting that documents how VA funds were spent.

Who completes it?

There is more than one type of fiduciary. The most common type you may encounter is the federal fiduciary, as opposed to a court-appointed fiduciary. Federal fiduciaries can be a spouse or other family member, a legal custodian, or even an organization like a state/local government entity or a health care facility.

When do you complete it?

It is up to the field examiner to decide whether a fiduciary should be required to submit an accounting, and if so, how often. For example, an accounting should not be required of a spouse payee unless there are unusual circumstances. If it does need to be completed, it is generally required annually, although the VA can request one at any time. For a regular annual accounting, the fiduciary should receive a letter a few months before the deadline explaining that the accounting is due. The due date is 30 days after the end of the accounting period, which is generally a one-year period that begins with the anniversary of the date on the letter appointing the fiduciary. You can request an extension if necessary.

How do you complete it?

The fiduciary accounting is fairly straightforward, although it can be confusing the first time you do it. The VA should send you two forms to complete: the VA form 21-4706b Federal Fiduciary’s Account and the 21-4718a Certificate of Balance on Deposit and Authorization to Disclose Financial Records. The second form is to be completed by the bank where the VA account was set up and is used to document the current balance plus any interest earned. Once completed by the bank, the form 21-4718a also needs to be signed by the fiduciary. These two forms should also be filed with copies of all bank statements for the VA account during the one-year accounting period.

The VA form 21-4706b, which is to be completed by the fiduciary, is used to report all activity of the VA account during the accounting period. It should not include any other accounts that the claimant may own. Despite the fact that the form requests “Amount received from Social Security” or “Amount received from other sources,” these are not reported on this form unless this income is being deposited in the VA account. Section I – Statement of Account on the first page comprises the following five parts:

Money Received
Money Spent
Total Estate at End of Period
Assets at End of Period
Total Assets

In part 1, “Money Received,” where it states under Item A, “Total Estate at beginning of period,” you must enter the balance of the VA account at the start of the accounting period. If this is the first fiduciary accounting, that balance may have been $0. Once you fill in this starting balance, you itemize what monies were received in the VA account in the boxes below. Any regular, monthly VA benefits should be listed under Item 1B, where you are provided with two lines in case the monthly benefit changed during the accounting period. Any lump sum deposits of retroactive VA benefits should be listed separately as items 1E to 1H and classified as VA lump sum.

In part 2, “Money Spent,” you list any expenses that were paid for the claimant during the accounting period from the VA account. Most of the time these expenses are medical in nature and can be listed under items 2G to 2L, since none of the pre-printed categories include medical. By subtracting the total spent in part 2 from the total received in part 1, you obtain the figure in part 3, “Total Estate at End of Period.” Part 4 is then where you list all current assets, which is usually what is contained in the VA account. If savings bonds were purchased with VA funds, you would also provide the total value of such bonds under item 4D and list those bonds individually on the second page. By totaling the assets in part 4, you obtain the figure in part 5, “Total Assets.” The goal of the fiduciary accounting is that the figure in part 3, “Total Estate at End of Period” matches the figure in part 5, “Total Assets.” If they do not, then review your entries and calculations, because you are missing something.

Result

Once the fiduciary hub has audited and approved the accounting, you will receive a letter stating as much, which may also tell you if future yearly accountings will be necessary. If you do not complete the accounting on time, you risk a temporary termination of benefits, the appointment of an alternate fiduciary, and even an investigation for possible misuse of funds. For more information, visit http://www.benefits.va.gov/FIDUCIARY/references.asp for a list of further resources regarding the VA fiduciary program.

If you want to learn more about what it means to be a Lawyers With Purpose member, consider joining us for the only event for estate law, asset protection and elder law professionals AND the teams that support them! Our Tri-Annual Practice Enhancement Retreat is October 19-23rd. Registration is open and you can still grab a spot at Early Bird Pricing. To register contact Amanda Ross at aross@lawyerswithpurpose.com or 877-209-0326 x 103.

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.

VA Aid and Attendance Benefits Qualification Worksheet

August 14, 2015

by Lawyers With Purpose with No Comment Asset Protection Estate Planning Drafting Software VA

What is it?

The VA Qualification Worksheet is an invaluable tool for estate planning when your client is a wartime veteran or the surviving spouse of a wartime veteran. It allows you to input a client’s income, medical expenses and assets to determine not only whether he or she will qualify for VA benefits, but also how much exactly the client would receive each month from the VA after approval. This tool is essentially mathematical in function, as it does not take into account whether there is eligibility based on wartime service or character of military discharge. The calculations that form the basis of the worksheet are the same used by the VA.

When the VA evaluates a claimant’s income and assets for eligibility, it is considering certain factors. First, gross income cannot exceed the given maximum annual pension rate (MAPR) for any year. The VA usually updates MAPRs each year and publishes them on its website at http://www.benefits.va.gov/pension/rates.asp. Not only can they change every year, but MAPRs also vary according to whether the claimant is a veteran or a surviving spouse, and also with the number of dependents, if any. Fortunately, one can use unreimbursed medical expenses to help offset gross income so that it is lower than the MAPR. Gross income minus these medical expenses is called Income for VA purposes, or IVAP. To get the maximum pension, the IVAP must be $0. IVAP between $1 and the MAPR will only result in a partial benefit.

Second, the claimant cannot have excessive net worth, even though there is no specific asset limit. As the VA Adjudication Procedures Manual Rewrite M21-1MR, Part V, Subpart iii, 1.J.70.a states: “No specific dollar amount can be designated as excessive net worth.” Nevertheless, because the manual M21-1MR, Part V, Subpart iii, 1.J.70.b goes on to state, “A formal administrative net worth decision is required if the beneficiary has net worth of $80,000 or more,” $80,000 has become the widely acknowledged asset limit for VA eligibility. This asset limit applies to both single and married claimants.

In rare cases, the VA will apply what is called age analysis when evaluating assets pursuant to the VA Adjudication Procedures Manual Rewrite M21-1MR, Part V, Subpart iii, 1.J.70.a, which states that “a number of variables must be taken into consideration when making a net worth determination.” These variables include income, expenses, and the claimant’s life expectancy. By applying an age analysis, the VA is attempting to determine whether “a claimant’s assets are sufficiently large that the claimant could live off these assets for a reasonable period of time,” at which point the VA can “deny pension for excessive net worth” (M21-1MR, Part V, Subpart iii, 1.J.67.g). While the adjudicators rarely apply this tool, you should be aware of the possibility.

How to use it

The VA Qualification Worksheet is part of the Lawyers with Purpose VA software and is also available as a standalone document, in either Microsoft Excel or Microsoft Word format, that you can complete by hand. Both versions are available for download from the members-only section of the LWP website. The worksheet is composed of six sections: VA Countable Income, Deductible Medical Expenses, Assets Countable in VA Net Worth, Maximum Applicable Pension Rate (MAPR), VA Allowable Net Worth without Age Analysis, and VA Allowable Net Worth with Age Analysis. Once you enter the appropriate information in the first three sections, the calculations will give you the results for the other three sections.

When to use it

The VA Qualification Worksheet’s value at the beginning of the VA planning process is obvious, as it helps identify how much of a benefit a client can expect to receive, if any. However, it is also valuable to run once you have completed a claim but before you file it, in order to verify that the results are what you expected. This can increase the success rate of your claims. If the claimant does not qualify for the maximum monthly benefit, there may still be time to correct it or, at the very least, you can inform your client of the issue to minimize any surprise or disappointment with the outcome. The worksheet should also be used at every annual review to confirm the monthly benefit given the claimant’s most recent income, assets, and medical expenses, and to determine whether any further planning needs to be done to ensure continued VA eligibility.

If you're not a Lawyers With Purpose member and want to learn more about the VA Proposed 3 Year Look Back, join our FREE WEBINAR on Wednesday, August 19th at 4 EST by clicking here to register. (Members – you already have access to the webinar on the Members Only section of the website!).

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

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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.