As the Veterans Administration plans to implement new laws that would impose a three-year look back for gifts, creating penalties of up to 10 years for both transfers of assets and purchase of annuities, lawyers frequently ask me, “Are we going to be able to do any planning and help wartime veterans and their widows anymore?” What they are really asking is, “Will these changes hurt my law firm?” and “Do I need to stop doing VA benefits planning?”
The simple, candid answers are: “Yes, possibly” and “No, the clients need you now more than ever.”
There is no doubt that the current way of doing things will change. For example, “crisis” VA planning (where an individual could do planning one month and be eligible for benefits the next month) will be reduced to those clients who have limited funds who seek only pre-application consultative advice. Thus, instead of being able to charge for a plan of eligibility, the lawyer may only charge a consultation fee. As always, no one will be able to charge to assist with the completion and filing of an application for benefits.
Even though crisis VA planning will be virtually dead, a new age of pre-planning will emerge. Like Medicaid planning, wherein people structure five-year “wait and see” asset protection plans, veterans will need to construct three-year planning options. This will lead to a new opportunity for advocates to create excellent estate plans that address traditional estate planning and death distribution desires, as well as VA benefits and future Medicaid benefits. This will also lead to the opportunity for licensed insurance brokers to reposition assets into three- to five-year immediate annuities to create guaranteed income streams to pay for the client’s living expenses and health care needs during the look back period. Instead of competing for business, lawyers and financial advisors should work together to create a solid long-term care plan, or, if permissible in your state, the lawyer should consider obtaining a license to sell insurance products to keep the plan under one roof and bolster income at the same time.
The look back and resulting penalties are not the only proposed law changes. The VA also plans to limit not only the acreage that applicants may have attached to their home place, but also the deductibility of certain medical expenses, etc. With all of the changes and the remaining ambiguity in the processing of the claims due to the language of the changes, clients will need lawyers to assist with appeals. Lawyers can charge reasonable fees, as approved by the VA, after a notice of disagreement has been filed. Presumably not many lawyers will want to do appellate work, leaving the field wide open for those who do.
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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.