Lawyers With Purpose

Victoria Collier Signs Publishing Deal With CelebrityPress® To Co-Author New Book

Victoria Collier, Co-Founder of Lawyers With Purpose and Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, has joined Jack Canfield, along with a select group of experts and professionals, to co-write the forthcoming book titled, The Road to Success: Today's Leading Entrepreneurs and Professionals Reveal Their Step-By-Step Systems To Help You Achieve The Health, Wealth and Lifestyle You Deserve. Nick Nanton, Esq., along with business partner, JW Dicks, Esq., the leading agents to Celebrity Experts^® worldwide, recently signed a publishing deal with Collier to contribute her expertise to the book, which will be released under their CelebrityPress® imprint.

The Road to Success: Today's Leading Entrepreneurs and Professionals Reveal Their Step-By-Step Systems To Help You Achieve The Health, Wealth and Lifestyle You Deserve is tentatively scheduled for release in fall 2016.

A portion of the royalties earned from The Road to Success will be donated to Entrepreneur’s International Foundation, a not for profit organization dedicated to creating unique launch campaigns to raise money and awareness for charitable causes.

About Victoria Collier:

Victoria Collier has been helping lawyers find their legal niche within estate planning since 2006. Being a paralegal in both the United States Air Force and also in the private sector, Victoria learned from her mentors that being a “jack-of-all-trades” and a “generalist” would only bring boredom and burnout.

Since establishing her own law firm, The Elder & Disability Law Firm of Victoria L. Collier, PC, exclusively to assist individuals planning for the second phase of their life, Victoria has created niches within niches and coached hundreds of other attorneys to do the same. It is Victoria’s goal to help other professionals find their passion and create profit. Victoria’s client base ranges from lawyers, to authors, to work-from-home mothers.

Victoria knows how to work hard and smart. She moved from her parents’ house at age 17, still in high school and while working full time. After graduation, Victoria moved from Houston to Dallas, knowing only one person. Victoria worked several jobs simultaneously to support herself until she enlisted in the USAF at age 19. Victoria was trained as a carpenter and mason, being only one of two females in a shop of almost 50 men. Three years later she cross-trained and became a paralegal, prosecuting and defending military personnel. After six years of honorable service during the Desert Storm era, Victoria entered the civilian workforce in South Georgia as a paralegal working with people with disabilities. Inspired to do more, at the age of 29 Victoria enrolled in law school at the University of Nebraska – Lincoln, College of Law. Upon graduating, Victoria opened her own law firm focusing on estate planning, disability planning, and elder care planning. In 2006 Victoria began educating lawyers across the nation on the special benefits available to senior veterans who were disabled. She not only became the national expert in VA Pension Benefits laws, but she created a fast growing niche within the estate and elder care planning profession. Due to the changing atmosphere of elder care, Victoria is once again creating a niche in elder law and coaching lawyers on how to incorporate long-term care planning through the use of financial products within their law practice.

Victoria is the author of the top selling book, 47 Secret Veterans’ Benefits for Seniors, Benefits You Have Earned But Don’t Know About!; 47 Secret Marketing Strategies for Veterans Benefits Attorneys; and Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Georgia Edition. Victoria has also co-authored the following books: Blooper Episodes in Estate Planning and Elder Law: Lessons From Prime Time TV, Georgia Edition, with Debbie J. Papay; Don’t Go Broke in a Nursing Home, Georgia Edition, with Don Quante; Protect Your IRA: Avoid the 5 Common Mistakes, with David J. Zumpano, CPA, J.D.; Running Through Life’s Lessons, with Jackie Clark; and Getting to Baby: Creating your Family Faster, Easier and Less Expensive through Fertility, Adoption, or Surrogacy, with Jennifer Collier.

About Celebrity Press^®:

Celebrity Press^® is a leading business, health and wellness book publisher that publishes books from thought leaders around the world. Celebrity Press^® has published books alongside Jack Canfield, Brian Tracy, Dan Kennedy, Dr. Ivan Misner, Robert Allen and many of the biggest experts across diverse fields. CelebrityPress^® has helped launch over 1500 best-selling authors to date. 

Learn more at http://www.celebritypresspublishing.com

 

Stick to Your Guns Trusts: Impact of the Brady Act of 1993 on Incompetent VA Beneficiaries

“We have received information showing that because of your disabilities you may need help handling your Department of Veterans Affairs (VA) benefits.” That is how the letter usually begins. A claimant may receive this letter after benefit approval, when the VA proposes a rating of incompetency, which usually means a fiduciary will need to be appointed to manage the VA funds. Generally, the letter does not come as a surprise – one can anticipate such a proposal when the doctor completes the VA form 21-2680 citing dementia or other illnesses that may affect the mind as a diagnosis and/or indicating that the claimant does not have the ability to manage his/her own financial affairs. However, you may not be aware of how the determination of incompetency, or the appointment of a representative payee for any reason, will impact your client’s Second Amendment rights. The VA spells it out for you in the same letter that proposes a finding of incompetency in the section titled “How This Decision Could Affect You”:

A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any prohibition, pursuant to section 924(a)(2) of title 18, United States Code, as implemented by Public Law 103-159 of the Brady Handgun Violence Prevention Act, you may be fined, imprisoned, or both. – VA Adjudication Manual M21-1, III.v.9.B.3.b.

In fact, once the finding of incompetency is finalized or a representative payee is appointed for any reason, including the applicant appointing one for convenience, the VA will forward to the Federal Bureau of Investigations (FBI) the name of the allegedly incompetent VA beneficiary to be placed in a database called the National Instant Criminal Background Check System (NICS). Anyone attempting to legally purchase a firearm in the United States should have their name checked against the NCIS database by the gun dealer before the final sale.

Fortunately, the VA also informs you of how to seek relief from the prohibitions of the Brady Act:

If we decide that you are unable to handle your VA funds, you may apply to VA for the relief of prohibitions imposed by the Brady Act with regards to the possession, purchase, receipt, or transportation of a firearm. Submit your request on the enclosed VA Form 21-4138, Statement in Support of Claim. VA will determine whether such relief is warranted. – VA Adjudication Manual M21-1, III.v.9.B.3.b.

The NICS Improvement Amendments Act of 2007 (NIAA) amended the Brady Act so the VA is obligated to allow incompetent beneficiaries the opportunity to request relief from the latter act’s reporting requirements. The NIAA places the responsibility for administering the relief program on the VA. Note that relief from the reporting requirements of the Brady Act is not considered a “benefit” under Title 38. Therefore, principles common to the VA’s adjudication process that benefit the claimant, such as “benefit of the doubt” and “duty to assist,” do not apply. The burden of proof for these requests resides with the beneficiary, and the requests must be clear and explicit. The application for relief from these prohibitions is reviewed by a Veterans Service Representative (VSR) who must determine whether there is “clear and convincing evidence [showing] the circumstances regarding your disability and your record and reputation are such that you are not likely to act in a manner dangerous to yourself or others, and the granting of relief is not contrary to public safety and/or the public interest,” according to VA Adjudication Manual M21-1, III.v.9.B.4.e.

In order to be successful, the application for relief must include a statement from a primary mental-health physician assessing mental health status over the last five years, medical information addressing any mental health symptoms and whether or not the claimant is likely to act in a manner dangerous to himself/herself or to the public, and evidence of his/her reputation, through character witness statements, testimony, or other character evidence. The VA will also seek your signature on a consent form that allows them to run a criminal background check. VA decisions that deny relief are not subject to review by the Board of Veterans’ Appeals. They are, however, subject to review in Federal District Court, and for this reason, all such decisions must contain a detailed explanation of the basis for denial.

To date, there has been no case pushed to the Supreme Court to determine if the actions of the VA are constitutional. David Goldman, a nationally recognized gun trust attorney, suspects it will likely take the involvement of the NRA or the Second Amendment Coalition to get a case heard before the Supreme Court on this issue.

Until that time, it is up to us to protect our clients and their firearms. In Henderson v. US (575 US ____ Docket No. 13-1487 (2015)), the SCOTUS held that a person not entitled under the federal law to possess firearms has not also lost the property right to the same. This decision makes gun trusts a vital tool. By placing the guns of a client who has been deemed incompetent into a gun trust, we can allow the client to maintain ownership of the guns the client wishes to protect. However, it is important to understand that the client cannot, under current rules, have actual possession of the firearms. This means the client cannot be the trustee of the gun trust and the firearms must not be accessible to the client. So, the trustee must lock the guns in a cabinet or move them to some other location the VA applicant cannot access. Failure to follow these rules can and has resulted in guns being seized from veterans.

Hopefully, this issue will get to the Supreme Court in the near future. However, in the interim, we need to proceed with caution in appointing representative payees in cases where it is not necessary for our clients with guns. When representative payees are necessary due to incompetence, the veteran may not maintain possession, but only ownership, of his firearms. The establishment of a gun trust under the correct guidelines can afford our clients the ability to maintain their guns.

If you want to learn more about becoming a Lawyers With Purpose member, click here to download our Membership Brochure and review all the benefits and tools available to our members.  

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.

Congratulations to Connie Aschenbrenner, Lawyers With Purpose Member Of The Month

What is the greatest success you’ve had since joining LWP? 

I accept the challenge to name my greatest success since joining LWP and believe it is having become a member of an organization of like-minded estate planning attorneys.  Organization is a word, I would describe LWP as a family.

What is your favorite LWP tool?

I use the design templates each time I work with a client.  These templates insure that I am discussing all of the issues with my clients.

How has being part of LWP impacted your team and your practice?

Being a member of LWP has given me the opportunity to learn and fine tune my skills as an estate planning attorney.  LWP membership has helped me understand the value I bring to my clients.  My understanding of the value we as the LWP community hold and share daily has increased my self-confidence.

I share in each of my workshops that I attend national conferences throughout the year.  These conferences provide educational material and networking opportunities, where I meet outstanding attorneys from throughout the United States.  I also attend the recurring educational webinars provided by LWP members while I am in my office. 

Being a part of LWP has allowed me to create a practice that lets me create the life I want.  I'm a solo attorney in Anchorage, Alaska who is grateful every day to go to work, knowing that I have the whole LWP community behind me.  I tell my workshop attendees, I'm a solo attorney, but it never feels like that in my office, because I can match a face to the people's names on the list serve and I know that the LWP community is only a phone call, email, plane ride, or a retreat away.

Share something about yourself that most people don’t know about you. 

I have a weighted hula hoop and arm hoops from Canyon Hoops in Portland, Oregon.  Hula hooping is a great sport.

What is your favorite book and how did it impact your life? 

I'd have to say the book Jesus Calling by Sarah Young; the Bible; Miracles Happen, by Mary Kay Ash; and 90 Days on the Path to Success, Building Health, Wealth, and Abundance by Lora Newman, M.S.   I'm continually learning how to live my life and including God in it.  These books and people, Lora Newman, are helping me have a more fulfilled life.

Patient Eviction - A Growing Problem Across the Country

 

Have you received the call from an old client’s family?  I certainly have. Dad is acting out.  Dad is hard to handle.  Daughter needs to sit with Dad all day or they cannot handle him.  We complained about Dad’s care, and now they want us to come get him.  Dad needs to be sent to the hospital for evaluation and they cannot hold his bed.  The stories are always different, but the end is the same.  The nursing home wants to discharge a difficult patient and get an “easier” patient in the bed. 

 

 

This is a growing problem in our country.  Between 2000 and 2014, national Ombudsman programs report that eviction complaints are up 57 percent, despite the number of nursing home patients being slightly down.  And the correlation between the growth of dementia and the eviction of patients seems clear.  On May 8, the Associated Press released a wonderful article titled, “Nursing homes turn to eviction to drop difficult patients,” and it is a must read. 

 

Certainly every nursing home in the country has read and comprehended the 1987 Nursing Home Bill of Rights.  Medicare requires that every nursing home give a copy of these rights to every patient.  Yet the calls continue to come in from desperate family members.  So what are we to do when clients’ families call, desperate to stop a loved one from being unnecessarily discharged to the hospital or to the care of an ill-equipped loved one? 

 

First, along with the federal laws, we must also be informed about our state initiatives.  Many states have OBRA 87 as a springboard to add additional protections for patients.  California forbids the discharge of patients as they switch from private pay to MediCal and will not allow a third-party payment method as a requirement for admission.  In Wisconsin, patients must be given a 30-day written notice for discharge and have their appeal rights explained.  In Illinois, patients have the right to be involved in all aspects of their care and to use whatever medical doctors they choose for their care.  In Alabama, no patient may be discharged without a written discharge plan presented to the patient sponsor.  

 

Certainly, knowing our state discharge procedures, appellate rights and care requirements is essential to us as elder care attorneys.  Our understanding of patient rights and legal protections, along with a phone call to a facility, can often go further than anything a family can do.  Forming a friendly relationship with the local ombudsman’s office can also be a great tool in your elder care tool belt.  As elder care attorneys, our ethical duties often extend beyond the words on our retainers, and I am proud that we, as LWP attorneys, take those duties to heart by making sure our clients’ rights are protected when they need us the most.   

 

If you want to learn more about becoming a Lawyers With Purpose member give us a little information about yourself. You will then be able to download the Membership Brochure and learn more about our membership benefit options.

 

Kimberly Brannon, Legal-Technical & Software Trainer, Lawyers With Purpose

 

In Unexpected Trust Fight, A Meaningful Victory

An individual entered the nursing home with no pre-plan. The daughter, the power of attorney, contacted Mike Goss’s office for a plan. As he has successfully done many times in the past, Mike created an asset protection plan for the new nursing home resident using an MIT trust. The penalty period was correctly calculated and a Medicaid Compliant Annuity was purchased to pay through the penalty.

This is where the “typical” part of Mike’s typically successful Medicaid application ends. Because, unlike countless other applications he had submitted using the same format and planning tools, this patient’s application was denied. It was denied under the premise that, because the patient could become the trustee, she therefore had access to the principal of the trust.

At the desk review, documentation was submitted stating that the trust, under no uncertain terms, allows the trustee to be a principal beneficiary. It was further submitted, though not necessary, that although the woman could not ever be a beneficiary, she also could not be a trustee, as she was admitted to the nursing home in an incompetent state.

After losing at the desk review, Mike moved forward to the Administrative Law Judge. Surely when the case was placed in front of an attorney, it would be determined that the desk worker simply did not understand a trust that had full force of the law and had been submitted and approved by the Medicaid Agency many times.

In the interim, the Lawyers with Purpose team, headed by Dave Zumpano and LWP members from the state of Indiana, met to go over the legal arguments supporting the long use of the IPUG trust in Indiana. However, it was determined that in all likelihood this case would be overturned by the ALJ. The ALJ did not feel the same way. He ruled that the trust was an available resource because the grantor could be the trustee.

Mike was forced to file for judicial review of the denial, and the case was moved over to the FSSA attorney. Using the law review article written by Dave Zumpano, POMS and state rulings, Mike invested time writing a brief for the hearing. Months went by as the FSSA attorney “attempted” to get the records from the administrative hearing. Mike tried to negotiate with the FSSA attorney to no avail. Right before the hearing date, Mike was asked for an extension by the FSSA attorney, with the reasoning that they may be able to negotiate a settlement. A few weeks later, Mike was contacted and asked to write an Order. He had won the appeal with no judicial hearing – a year after his client applied for Medicaid.

Mike’s due diligence paid off and his client received the Medicaid benefits she was legally entitled to. His advocacy for his client not only got her on Medicaid but protected the MIT trust as a planning tool for all attorneys in his state moving forward. Had he not kept fighting for what the law allows, bad interpretation by a Medicaid desk worker could have closed an entire avenue of planning for countless applicants in the future. Thank you Mike Goss for being a tireless advocate for not only your clients, but for all elderly in your community and state.

If you want to learn more about becoming a Lawyers With Purpose member give us a little information about yourself. You will then be able to download the Membership Brochure and learn more about our membership benefit options.

Kimberly Brannon, Technical Legal & Software Trainer - Lawyers With Purpose

World Elder Abuse Awareness Day

World Elder Abuse Awareness Day is certainly one we all wish did not require special attention on our calendars. Unfortunately, it does. Every year an estimated 5 million older Americans are victims of elder abuse, neglect, or exploitation. And that’s only part of the picture: Experts believe that for every case of elder abuse or neglect reported, as many as 23 cases go unreported. Elder abuse can take many forms: verbal, physical, financial. Today is the day we as advocates for the elderly can take a moment to remember a few steps we can take for our clients to discover and stop elder abuse.

First, we must listen to our clients. Clients are often brought into our office by their children or another family member. As part of our ethical practice, we should always take an opportunity to speak to our elderly clients alone, explain to them the confidential nature of our attorney-client relationship and allow them the opportunity to tell us any information they may not be comfortable disclosing in front of the person who brought them into the office. Affording our elderly clients the opportunity to confidentially trust in us can often bring feelings and issues to the table that could otherwise go unnoticed.

Second, we can recommend that caregivers find the necessary time to take care of themselves. Caregivers are full-time nurses, cooks, housekeepers, and sitters. Statistics show that a large percentage of elder physical abuse takes place because of caregivers feeling overwhelmed. We can gather information about caregiver support groups in our area and provide that list to the caregivers entering our office. Providing information and understanding to caregivers allows them to know that our offices are there for them when they reach a point where they feel they cannot continue on.

Third, we can monitor the trusts created for our clients as Trust Protectors. This is a wonderful way to use the LWP maintenance plans to benefit the clients we love. As Trust Protector we can assure that the assets our clients worked so hard for are being used as they intended and in a fashion that represents their best interests. When a trustee is abusing his or her authority, we can step in and protect the assets our clients have entrusted us to protect.

Finally, we can educate our communities. We can reach out to community groups and organizations and speak to them about the signs of elder abuse, the importance of caregivers’ own health and well-being, the standards Attorneys-in-fact and Trustees are held to, and what signs to look for in our loved ones who are being cared for outside of the home. We can arm clients and community members with the names of their local ombudsman and elder abuse agencies.

So today, I hope each of us takes the opportunity to think of one thing we can do to stop elder abuse. Wouldn’t it be nice if this was a day we never have to “celebrate” again?

If you want to learn more about becoming a Lawyers With Purpose member, click here and give us a little information about yourself. You will then be able to download the Membership Brochure.

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

The Nuts and Bolts of VA Accreditation

 

What does VA accreditation mean? 

 

Generally, for anyone to assist another with a specific claim for VA benefits – even if it is being done free of charge – he/she must be accredited by the Department of Veterans Affairs (VA). Assistance includes preparation, presentation, and prosecution of a specific claim for benefits. Per the VA’s Pension Benefits Fact Sheet, accreditation is supposed to mean that an individual can provide responsible, qualified representation of a claimant, although the VA also states on its website that accreditation, “does not imply that a representative is qualified to provide financial planning services or is otherwise endorsed by VA” (http://www.va.gov/ogc/accreditation.asp). There is an exception to this requirement: The VA will allow an individual to represent a claimant one time without accreditation, which is often the situation when an adult child helps a parent file for benefits. Finally, accreditation is not required when claimants represents themselves – in other words, a claim can be fully processed without anyone representing the claimant at any point in the process.  

 

 

There are three categories of individuals whom the VA will accredit: representatives of VA-recognized Veterans Service Organizations (VSOs), independent claims agents, and private attorneys. The route to accreditation differs for these various categories, but the governing department of all accreditation matters is the VA’s Office of General Counsel (VAOGC). It is this department that handles any questions, comments, and requests for correction of information related to accreditation as well as receiving any complaints regarding misconduct or incompetent representation. 

 

Who needs to be accredited in the law firm? 

 

Any attorney in a law firm who assists with specific claims for VA benefits must be accredited. Employees of an attorney, however, cannot be accredited. This includes law students, interns, paralegals, and legal assistants. Those employees may assist with claims as long as it is under the direct supervision of the accredited attorney and with the specific written consent of the claimant. For this reason, it is recommended that you include in your VA legal services agreements language that the claimant agrees that all attorneys and staff members employed by your law firm may assist with the preparation, presentation, and prosecution of the VA claim and authorizes specifically named staff members to work on the file. 

 

How do you get accredited? 

 

Representatives of VA-recognized VSOs have a certifying official within their organization who handles accreditation internally. Attorneys and independent claims agents have slightly different paths to accreditation. There is an initial accreditation process that begins with completing and filing a VA Form 21a with any supporting documentation or supplementary pages as needed to the VAOGC. This form asks about employment status and history, educational background, criminal history, some medical information, and character references. The VAOGC reviews the submission for evidence of “good moral character and reputation,” as stated in this form’s instructions, to determine fitness for practice before the VA. An attorney applicant who is in good standing with any state bar will then receive accreditation with the stipulation of having to complete a qualifying three-hour CLE course within 12 months of initial accreditation. However, claims agent applicants must jump through an additional hoop in the form of a written exam administered by the VA on which they must get a score of at least 75%.  

  

The FAQs listed on the back of the How to Apply for VA Accreditation Fact Sheet state that it takes attorneys between 60 to 120 days to complete initial accreditation. In contrast, due to the need to pass a qualifying examination, claim agent applications may take an average of one year to process fully. Attorneys are also required to maintain their accreditation every year by submitting a letter to the VA affirming that he/she is still in good standing with the state bar, and every two years by completing an additional three-hour CLE course pertaining to the VA. 

 

Benefits/limitations of accreditation 

 

The value of accreditation is that it is required to represent claimants in regards to their claims for VA pension benefits. And when you represent the claimant, you have the most control over the claim in what can seem an uncontrollable process. As accredited agent or attorney, you can call the VA for claim status inquiries and you should be copied on all correspondence that is addressed to the claimant. If a family member represents the claimant or the claimant represents themselves, you depend on the family to let you know what the VA has requested in a timely fashion.  

 

While it is recommended that an attorney not assist with a VA claim until he/she is fully accredited, if a VA claim were to be filed by an unaccredited attorney with the VA form 21-22a Appointment of Individual as Claimant’s Representative, the VA will “contact the claimant and advise him or her that VA will not recognize the unaccredited attorney as the representative of record until he or she is accredited.  VA will advise the claimant that he or she may (1) seek other representation, or (2) proceed without representation until the attorney is accredited,” per the VA’s Accreditation FAQ. Although potentially embarrassing, ultimately the VA would not reject a VA claim because it was filed with the VA Form 21-22a of an unaccredited attorney.

 

There are limitations to the use of VA accreditation. You can’t use your accreditation status to advertise or in any way suggest that you are a VA-approved or VA-preferred provider. If the VA finds that an agent or attorney is using VA accreditation for an improper purpose, the individual’s accreditation may be suspended or canceled.   

 

Checking accreditation status 

 

You can check your accreditation status at any time, or even when awaiting notification of initial accreditation, by consulting the searchable list of accredited representatives, agents, and attorneys at the Office of the General Counsel website: http://www.va.gov/ogc/apps/accreditation/index.asp. You are warned, however, that this list is not always updated regularly. If you have any doubts, it is recommended that you email and/or fax your inquiry to the VAOGC for the most current accreditation status. 

 

Contact info 

Veterans Administration Office of General Counsel 

Address:Office of the General Counsel (022D) 

810 Vermont Avenue, NW 

Washington, D.C.  20420 

Fax: (202) 273-0197 

E-mail: [email protected] 

  

Did you know we offer a complimentary VA Tech School webinar on the first Wednesday of each month.  Join us on Wednesday, July 6th at 12 EST.  You can register here:https://attendee.gotowebinar.com/rt/3181521930337595395

 

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. 

 

Maximizing Your Legal Technical Training

As those of you who have joined in on our weekly live case study review during the last few weeks are aware, Lawyers with Purpose is getting ready for some exciting changes in our legal technical training.  Over the past several months, as my calendar has been freed up to provide one-on-one legal training and file reviews with members, case-specific questions for the Live Case Study review have slowly faded. As such, we are restructuring the Monday afternoon hour to continue to provide members with the most efficient use of your time and the time of your staff.

 

 

Moving forward, while we will continue to address all questions that are submitted by 5 p.m. Friday on the following Monday, we will be using a large portion of the legal technical hour as an in-depth study of the Lawyers with Purpose system and the many uses of the LWP Client Centered Software.

 

We will be discussing the four layers of planning, and we will go through the documents used in these plans in the LWPCCS as we learn. In the first layer, estate planning, we will talk about the Power of Attorney, Health Care Directive, Will and Revocable Living Trust. We will discuss what makes these documents client-centered and what features of the software you can use to achieve

various client goals. In the second layer, asset protection planning, we will discuss the legal distinction of what known creditors and predators are, along with the many client-centered features of the IPUG trust, family trust and other irrevocable trusts that the LWPCCS offers in the asset protection realm.

 

It is in the third layer that we will focus most of our studies. In the special needs and benefits planning layer, we will review the general rules of Medicaid, VA pension and SSI. We will then focus on the many planning tools available in the IPUG, MIT, FIT and KIT, the special needs trust and the other irrevocable trusts available in the LWPCCS for creating a successful plan that provides the highest level of planning that most of our clients require. We will focus on powers of appointment, trust protectors, disability panels and all of the other options the software provides to make these plans highly client-centered and extremely effective at the same time. And finally, we will discuss the fourth layer, tax planning. We will address how to create various tax shelters, ILITs and other plans designed to shelter the assets of our wealthier clients. 

 

As we move through this series, I will send weekly emails to the Listserv letting you know where we are in our studies. We will treat the call as a live classroom and will have time for questions each day on the topics discussed. The legal technical hour is for MEMBERS ONLY on Monday afternoons at 4 p.m. Eastern.  I encourage you to register and for your entire staff to listen. 

 

I am confident that the drafting techniques and legal lessons will be a great benefit to your entire firm, and an hour well-spent. I am excited to continue to move forward as the most client-focused group of elder law attorneys in the country.  If you are not a Lawyers With Purpose member and want to know more about joining our community, contact Molly Hall at [email protected].

 

Kimberly Brannon, Legal-Technical Trainer - Lawyers With Purpose

 

Alzheimer’s SUCKS! This is YOUR CHANCE to participate for a cure.

Chances are you or someone you love has been touched by Alzheimer’s Disease.

We’ve sent you communication before about how it has rocked our own families. 

Now, this June, we are collectively doing something about it as a community – and we invite you to participate or sponsor us as we take part in The Longest Day event during our Tri-Annual Practice Enhancement Retreat in San Diego.

(You can participate live or virtually! Skip ahead to join the team!)

The Longest Day is a team event to raise funds and awareness for the Alzheimer's Association®. Held annually on the summer solstice, the duration of this sunrise-to-sunset event symbolizes the challenging journey of those living with the disease and their caregivers. Teams are encouraged to create their own experience as they fundraise and participate in an activity they love to honor someone facing the disease.

You can live anywhere and participate in The Longest Day. Join with friends and family across the country – or even the world – and form a team that is active from multiple locations.

If you are attending the LWP retreat, the easiest way to get involved is to join our team in memory of Kimberly’s Mee-Maw:

Our LWP team will be holding numerous events through the day to help you get out and get moving, including a.m. and p.m. yoga with Molly, stretching with purple bands in the room at every break, or rocking a purple t-shirt as you support our walking team led by Kimberly, Roz and Molly.

If you CAN’T participate with us in person, please go here to sponsor our team virtually and commit to doing a Longest Day activity, wherever you are.

After you register, simply decide what your law firm will do in honor of The Longest Day. You can find many ideas on the association’s website, or go the extra mile in the quest for a cure by hosting a themed event in YOUR COMMUNITY. You likely have many referral sources, past clients and prospects who would be interested to join and support you in this important endeavor.

No matter what option you choose, please do something.

Finally, don’t forget to WEAR PURPLE to spread the word … and get your entire office team involved! Post pictures of your purple themes on social media, email them to your friends and family, send the pictures into your local paper … whatever! Do what you can to spread the word about Alzheimer’s Disease this June.

Dedicated to finding a cure,

The LWP Team

Marriage/Schmarriage: What’s Love Got to Do with VA Non-Service-Connected Disability Pension?

 

As it turns out, a lot. Love and marriage can be of supreme importance when the Veterans Administration (VA) is considering an application for death pension from a surviving spouse. It is true that marriage is one way to document a veteran’s dependent, and this would mean an additional $332 per month to a vet’s pension in 2016. But failure to document a veteran’s marriage would certainly not be an outright bar to pension. By contrast, in the case of a surviving spouse’s claim, if you cannot document that the marriage between the surviving spouse and the veteran was valid, you have no claim at all, regardless of how eligible the surviving spouse may be otherwise.  

 

 

Let’s consider the VA’s definitions of a surviving spouse and marriage. Pursuant to 38 CFR §3.50, a surviving spouse is someone of the opposite sex whose marriage to the veteran was valid; who was the spouse of the veteran at the time of the veteran's death; who lived with the veteran continuously from the date of marriage to the date of the veteran's death; and who “has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.” Marriage is defined in 38 CFR §3.1(j) as “a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.” Despite these broad definitions, there are plenty of exceptions that complicate the issue of determining whether someone qualifies as a surviving spouse, particularly when you are dealing with multiple remarriages. A notable exception is that, despite the federal government’s recognition of same-sex marriages conflicting with the VA’s definition of a surviving spouse as being someone of the opposite sex, the VA will consider same-sex marriages as long as the marriage was valid per the terms of 38 CFR §3.1 (j) above. 

 

Another exception is that, if there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse, it is not required to meet the continuous cohabitation requirement. And you only need to provide a statement from the surviving spouse to document this situation in the absence of contradictory information. Furthermore, per 38 CFR §3.60, “for the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged.” Therefore, separations due to one spouse being institutionalized and the other spouse living in the community are not considered breaks in continuous cohabitation. 

 

You may also have to consider the dates and duration of any marriage to determine its validity. The section on marriage dates, 38 CFR §3.54, states, “Death pension may be paid to a surviving spouse who was married to the veteran: (1) One year or more prior to the veteran's death, or (2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) Prior to the applicable delimiting dates,” which are 10 years after the end of that veteran’s particular wartime service period. For example, if a vet passed away 364 days after the date of the marriage, the surviving spouse may still have a claim, if a child was born of the union or they were married within 10 years of the end of their wartime service period. There is even a section under 38 CFR §3.54 for those clients who have married the same veteran more than once on or after January 1, 1958. If that scenario should ever present itself, bear in mind that “the date of the original marriage will be used in determining whether the statutory requirement as to date of marriage has been met.” 

 

Finally, even the requirement that the surviving spouse remain a faithful widow/er, and not remarry after the death of the veteran to stay eligible for death pension, has its exceptions. Title
38 CFR §3.55, which addresses reinstatement of benefits eligibility based upon terminated marital relationships, and which explains under what circumstances remarriage of a surviving spouse will not bar the furnishing of benefits to such surviving spouse, can be a daunting regulation to understand. The myriad dates you must consider not only for death pension, but for other types of benefits for which surviving spouses may qualify as well, can cause much confusion. However, to summarize briefly here, the only way for a surviving spouse who remarried to still be eligible for non-service-connected disability pension benefits would be if any remarriage was either: 

• Void 
• Annulled  
• Remarriage occurred after January 1, 1971 and was terminated before November 1, 1990 or terminated by legal proceedings initiated before November 1, 1990. 
   

Service-connected disability dependency and indemnity compensation (DIC), medical benefits, and even educational assistance is available for surviving spouses who remarried and terminated the remarriage during other time periods, but there is no non-service-connected pension for a surviving spouse who remarried unless that remarriage met one of the three criteria listed above.  

 

The most important thing to document for all prior marriages of both a veteran and the spouse is their termination. This means having your client dig up death certificates with the cause of death explicitly stated, or divorce/annulment decrees, etc. This can be a difficult task when you have clients with multiple marriages, a circumstance that is becoming more common as people live longer lives. Documents of this nature, or other reminders of past marriages, may not be preserved or can be a touchy subject for even adult children to discuss with their parents. However, you must insist on this documentation, because if any of the previous marriages cannot be shown to have been terminated by death or divorce, the later marriage that could be the basis for a VA claim would not be valid.  

 

If you would like to join our complimentary VA Tech School you can register here: https://attendee.gotowebinar.com/rt/3181521930337595395

 

In these ever changing times, it is critical to stay current with the laws, policies and practice of the Veterans Administration. VA Tech School monthly webinars provide education on the legal technical aspects of qualifying for the Improved Pension (with Aid and Attendance) for wartime veterans. The monthly webinars will be on the first Wednesday of each month at 12:00 p.m. Eastern Time.

 

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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