Lawyers With Purpose

Latest Release of LWP-CCS Software

The latest version of the Lawyers with Purpose Client-Centered Software (LWP-CCS) was recently released and can be downloaded by using the link emailed to all qualifying members. Instructions on how to install the update are included. Please contact Member Services if you have not received an email. Updates were made to the Medicaid and VA modules and the LWP-CCS forms; the changes are summarized below.

Medicaid Qualification

Statutory wartime dates for VA eligibility have been added to the MedQual Worksheet as a reference aid. Further changes were made to the Asset Risk Analysis to show the rate of loss to a nursing home when in a "crisis" situation. You may also notice that the termination language in the Personal Services Agreement has been simplified per member feedback.

We also updated and simplified the language of the Termination section in the Personal Services Agreement.

LWP-CCS Forms

There have been some state-specific changes to the form documents at the request of our state bar members.

We also updated the Illinois Health Care Power of Attorney.

VA Qualification and Application

As another quarter is coming to a close for 2016 without us hearing a peep regarding the proposed VA look-back period, changes to the VA module were minimal with this release. As done for the MedQual worksheet, wartime dates for VA eligibility were added to the VA HotDocs Interviews for convenient reference.

The most important update was the new version of the main application form for filing for veterans improved pension; namely the VA form 21-527EZ Application For Pension is now the 21P-527EZ. Although this is an important update due to the significance of this form and the need to use VA-prescribed forms, the actual changes were negligible, consisting only of the addition of the letter P to the form number and a new revision date of April 2016. Another VA form that was updated is the 24-0296 Direct Deposit Enrollment, which you may use to enroll in direct deposit of VA payments into a bank account.

Another change was made at a member’s suggestion regarding the healthcare provider statement that is generated either through the VA Intent to File Interview or the VA Formal Claim Interview to document certain medical expenses. This document was generating by default with the veteran’s name in the field, “The following services are provided to: _________.” This latest release has removed this default so that this field now remains blank and this form can be used for the veteran and/or the spouse as needed.

This last change illustrates how Lawyers with Purpose benefits from you, our community of members, in improving and developing our software. We are always open to any ideas that allow us to provide you with the most current, useful, and efficient tools for your firm. Always let us know how we can be better!

If you're a Lawyers With Purpose member and use Actionstep, the corresponding software release and separate instruction file is available for download now in the Software section of the members’ Lawyers with Purpose website at http://www.lwpmembers.com/posts/lwp-actionstep-hotdocs-integration. The changes in the Actionstep release are identical to those listed above.

If you want to learn more about our drafting software click here to schedule a live demo.

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

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.

When the VA Wants Its Money Back: Handling a VA Overpayment Demand

Receiving mail from the Department of Veterans Affairs (VA) may be a source of excitement for some folks, particularly when they are waiting for news of an initial VA decision. However, once a claimant is getting the correct monthly benefit, correspondence from the VA is generally not good news. Unfortunately, there are times when the VA decides that benefits were awarded and paid in error, resulting in an overpayment demand from the VA’s Debt Management Center. The Debt Management Center (DMC) is a separate department from the Pension Management Center (PMC). The PMC may send you a decision letter explaining why a claimant’s entitlement has changed, but it is left to the DMC to issue the actual request for repayment if the change in entitlement has resulted in a so-called overpayment. This is done via a form letter punctuated by only a few personal details, such as the type of benefit, the amount of debt, and the date on which the VA plans to start withholding benefits until the amount overpaid is recouped. The horror is compounded by the convenient payment remittance stub at the bottom, by which the VA hopes you will pay in full within 30 days.

Overpayment demands occur for various reasons. The claimant’s income may have increased and/or there is a decrease in medical expenses, so he/she no longer qualifies for the same monthly benefit. Or the claimant may have received an inheritance that disqualified him/her completely, based on the VA treating the inheritance as both income and countable assets after a certain date, even though the claimant continued to receive a benefit. If there is indeed more income/less medical expenses than previously reported, consider submitting actual medical expenses for the same time period if sufficient to offset the discrepancy. However, just because the VA claims to have overpaid, that does not necessarily mean that the claim is accurate. Sometimes an overpayment demand is simply the result of a clerical error or the VA considering historical income and/or asset information that should be irrelevant post the effective date.

When you receive an overpayment notice from the DMC, you must generally respond in some way within 30 days of the date of the letter. Responding within this time frame will also ensure that any scheduled withholding action does not occur until after your response is considered by the VA. How you respond depends on whether the overpayment demand has merit and/or whether or not the claimant can repay the debt. If the claimant does owe the debt, the back of the form letter gives you four different ways to pay: by phone, by mail, online, and via Western Union Quick Collect. The DMC has its own toll-free number: (800) 827-0648. If you cannot afford to pay the entire debt at once, the VA is willing to make arrangements for repayment over time or even ultimately to grant a waiver of the debt, if the claimant does not have the means to repay at all.

Claimants may dispute a debt if it is not owed or dispute the amount of the debt if it is inaccurate. The form letter from the DMC should be accompanied by VA form 0748, which is a Notice of Rights and Obligations that explains the claimant’s options for appealing and requesting a waiver of a debt. If you dispute the debt, you must explain in writing why you dispute the validity of the debt or the amount of the debt. If you request a waiver of part or all of the debt, you must explain in writing either why you are not responsible for the debt or how collection of the debt would cause undue hardship. Claims of hardship should be documented by submitting a VA form 5655 Financial Status Report within 180 days, which the VA considers in deciding whether to waive the debt. Pursuant to 38 CFR §1.963, “Recovery of overpayments of any benefits made under laws administered by the VA shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the [claimant] and recovery of the indebtedness . . . would be against equity and good conscience.”

Finally, you must remember – having now dealt with the DMC – to consider whether you should also respond to the appropriate pension department. If an overpayment occurred because the VA made an erroneous decision, you would need to file a request for reconsideration or notice of disagreement with the Pension Management Center serving your particular state in order to start the appeal process. I would not count on the VA to consider your dispute of a debt as an appeal of the PMC’s decision.

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.

Income vs Asset Transfer Lookback: When the VA Questions Income Prior to the Effective Date

You may be aware that the Department of Veterans Affairs (VA) will be implementing a proposed three-year lookback period for asset transfers sometime in 2016. Until this rule becomes final, veterans and their surviving spouses can continue to transfer assets out of their name and become almost immediately eligible for VA pension under the asset standard. However, you may have already experienced the “income lookback,” which is when the VA questions income prior to the effective date of a claim. Today, I will explain why this occurs, whether it matters, and finally, how you respond. But first, let’s cover what determines the effective date of a claim.

What is the effective date?

The effective date is technically the date the VA receives the intent to file claim or the formal claim. If you file an intent to file claim or a formal claim on June 6, 2016, the effective date is June 6, 2016. However, actual payment for awarded claims begins the first of the month following the month in which the intent to file or the formal claim is filed. Thus, when we think of effective date, we are usually thinking of when payment begins. Therefore, if you file an intent to file claim or formal claim on June 6, 2016, the effective date for payment would be July 1, 2016.

Regardless of the effective date, there are situations in which the VA will consider retroactive months. A veteran can seek benefits for up to 12 months prior to the effective date if he/she was disabled and financially eligible at that time. Note that when you seek this, you should specifically include the citation in Title 38 CFR Sections 3.114 and 3.400 and provide income, asset, and medical expense information for the prior 12 months as well as for the current time period. A surviving spouse has up to a year after the death of the veteran to file a claim for death pension, and the VA will grant retroactively to the month of the veteran’s death. If he/she files after this one-year window, the effective date will be the first of the month following the month in which the intent to file or the formal claim is filed.

Why does the VA question income prior to the effective date?

The VA is supposed to explore potential retroactive benefits, or at least inform claimants of them. Although you might not expect the VA to go out of its way to find out if a claimant was owed benefits for any period of time before filing a claim, it can happen. I have seen death pension claims awarded back to the month of the veteran’s death, even though the surviving spouse was not eligible at that time, and despite the fact that we specifically requested a later effective date when he/she was eligible.

Questions regarding prior income generally arise because the VA cross-checks income submitted on the application for benefits (the VA forms 21P-527EZ and the 21-534EZ) with what is on record with the Internal Revenue Service (IRS). The VA started doing this in the year 2013 once it phased out the Eligibility Verification Report, which was the annual review of income and medical expenses to confirm VA eligibility. Because the VA is seeing historical information, the income reported to the IRS in prior years may be substantially more than what a claimant currently expects to make.

Does it matter if the VA questions income prior to the effective date?

If you are seeking retroactive benefits, then you should expect the VA to question income prior to the effective date, as well as assets and medical expenses, which, in this case, does not matter. Another possibility – and this does occur – is that by checking with the IRS, the VA discovers an income stream that was not reported to you and thus is not included in the claim. This is not necessarily intentional on anyone’s part but may be due to a family’s unfamiliarity with an incompetent claimant’s financial details. This can occur with irregular sources of income in particular. In this case it does matter, as you must now concede to the VA that there is additional income of which the family was not aware. If there is more income being currently received by your claimant than you knew about, then you might not have enough recurring medical expenses to offset this newly found income, and this could result in a partial award or denial. You may need to plan to file actual medical expenses annually with the VA in order to maximize your claimant’s pension benefit.

When it does really matter is when that income is no longer being generated as of the effective date (e.g. because interest-bearing assets were liquidated, spent down or transferred, because a retirement fund was withdrawn, because bonds were cashed, etc.) because the VA Adjudication Manual M21-1, V.iii.1.E.6.o on “Income Received Before the Effective Date of the Award” specifically states:

Do not count income received before the effective date of an original or new award. (For Survivors Pension cases, do not count income received between the effective date and the date of the Veteran’s death.) The effective date is the date a claimant is entitled to benefits without regard to 38 CFR 3.31.

And elsewhere the VA Adjudication Manual M21-1, V.i.3.A.3.c defines the “Reporting Period for Current-Law Pension” as:

Current-law pension income is based on 12-month annualization periods. After the initial year, income-counting periods for irregular income and medical expenses coincide with the calendar year. Income is reported on a calendar-year basis.

If the case involves ... an original or reopened claim

Then ... the initial annualization period extends from the date of pension entitlement through the end of the month that is 12 months from the month during which entitlement arose.

Finally, even the main application forms for veterans’ improved pension (the new VA form 21P-527EZ) and the surviving spouse’s death pension (VA form 21-534EZ) specifically request income as of the effective date for expected income such as dividends and interest.

How do you respond?

You should respond to all inquiries from the VA, but depending on your claimant’s particular scenario you must decide whether the appropriate response is to rebut or regroup. Regardless of the scenario, make sure to reply in a timely manner or request an extension. You are usually given at least 30 days to respond or the VA will go ahead and decide a claim, and that may mean a denial or an approval for a lesser amount, if they are considering prior, higher income. This does not mean that you have no recourse after the VA has issued such a decision. If you get a denial, you still have up to one year from the date of the denial letter to appeal. If you have an approval for a lesser amount, you have a little more flexibility, as the VA must consider any income/medical expense information as long as it is submitted within the calendar year following the year in which that income/medical expense occurred. For example, if I had a claim approved today for a lesser amount based on income that the claimant received in tax year 2015, then I would have until 12/31/2017 to submit a rebuttal of this information, and the VA must consider it.

If you decide that the VA’s inquiries into income prior to the effective date should be rebutted as immaterial to your client’s claim, then you can respond with the citations from the VA adjudication manual above and essentially state in your rebuttal that income prior to the effective date is irrelevant.

However, despite the VA’s own regulations, you may struggle to get them to accept this rebuttal, and they often still insist on evidence of termination/liquidation of any accounts that historically have generated more income than what is declared on the VA claim. In the interest of getting your client awarded his/her rightful pension sooner rather than later, you may choose the path of least resistance and obtain the requested documentation.

Nevertheless, the very real possibility that the VA may question income prior to the effective date may shape how your firm recommends that clients transfer assets. Consider closing accounts rather than transferring or renaming accounts to create a clean break. Go ahead and collect documentation about closed accounts so you will be prepared in anticipation of such an inquiry from the VA. You may even want to consider inserting a statement with VA formal claims that explains that expected income will decrease significantly as compared to prior years due to liquidating interest-bearing accounts to pay for increasing medical costs. Also you may want to anticipate issues by requesting the prior year’s tax return of any VA claimant so you can see what information the VA is likely going to get from cross-checking with the IRS.

After the proposed changes affecting pension benefits and transfers of assets become final, we expect that the VA will specifically request financial information prior to the effective date – specifically three years prior to the effective date. And because net worth under the proposed rule may include annual gross income, you’d better believe that the VA will continue questioning income received prior to the effective date. Only time will tell what the proposed lookback period will look like when finally implemented, and that will determine how we recommend that you respond to such inquiries in the future. Rest assured, however, that when that time comes, Lawyers with Purpose will be there to develop strategies and draft recommendations that you can use in your firm.

If you are interested in our monthly complementary VA Tech School webinar you can register here.  We host it on the first Wednesday of every month and it's open to both members and non-members.  Our next webinar is on Wednesday, August 3rd at 12 EST titled Big Brother is Watching: Fiduciary Accounting.  

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

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.

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

 

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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VA Pension Claims: What to Include and Exclude

The Medicaid Millionaire: Myth or Reality?

As the Lawyers with Purpose attorney trainer, I am often asked by transitioning attorneys or new members how I can justify helping people shelter money so that they could possibly one day receive Medicaid benefits, while still having funds available in trust. I often think as I respond, how could you not?

The Medicaid program was established in 1965. The original purpose of the program was to provide needed care for the indigent. In a 2011 House hearing on “Abuses of Medicaid Eligibility Rules,” Rep. Trey Gowdy argued that the extremely wealthy should not be on Medicaid. Medicaid is a program to alleviate impoverishment, so certainly this argument makes sense. One thing both Donald Trump and Hillary Clinton have in common is that neither should be in our offices asking how to get Medicaid benefits for long-term care.

But Rep. Gowdy went a step further, stating that “Income and asset tests are easy to circumvent and abuse. In fact, a cottage industry has arisen seeking to educate the wealthy on how to transfer or hide assets so taxpayers can pay for their long-term care.” When I read Mr. Gowdy’s quote, certainly I was not shocked. We, as a “cottage industry” of elder care attorneys, have already been pinned “pension poachers” by the Department of Veteran’s Affairs. So, it is not a stretch to hear that we are also being labeled in this way, even though we never break or abuse a law and certainly never ask our clients to do so.

I would like to ask Mr. Gowdy, and all of those who paint us with the broad brush stroke of system abusers, if they actually have any idea who our typical clients are. I suspect that they do not. Because the reality is that very few multi-millionaires come into our offices seeking Medicaid benefits. No, they come in for tax planning, they come in for asset protection and they come in for family trust planning. The people who come through our doors because a spouse has just entered the nursing home and they have been asked to deplete their $250,000 in savings to pay $8,000 a month for care are not these “millionaires.” They are the hard-working, tax-paying middle class. And they are frightened, they are nervous and they know that they are quickly becoming the indigent.

Currently, long-term care beneficiaries represent about 7 percent of the Medicaid recipient population. However, they absorb about 19 percent of the Medicaid funds. Why? Because long-term care is astronomically expensive and there is no other public program available to help with the expense. It is also believed that the average pre-plan for couples who plan over five years prior to institutionalization is saving the married client between $240,000 and $750,000. These numbers decrease by over half when we look at crisis cases. When asking why they pre-planned for Medicaid eligibility, below are the answers I received from former clients.

From a former school teacher married to a Vietnam veteran: “My husband has dementia. He could be sick for a long time and I am only 68 years old.”

From a widow with an adult disabled child in her home: “My daughter has special needs and is wheelchair-bound and I need to have the money left over to care for her for the rest of her life.”

From a retired doctor and his wife, a teacher: “I paid taxes all my life and I continue to pay all that is required of me. I also donate time and money to those in need. My children work hard and I do not want to be a burden on them.”

From an auto mechanic with Parkinson’s and his wife, a retired bus driver: “My neighbor lost everything they worked for. I don’t want to die having lost everything I worked for my wife to have when she is alone.”

It is also worth noting that the “Abuses of Medicaid Eligibility Rules” hearing never grew into any proposed law changes. This is most likely because the officials from the state Medicaid agencies and the nursing care industry who were brought in to speak before the committee painted a completely different portrait of the “system abusers.” They told the stories that they see every day. They spoke of the middle class – scared, desperate, and struggling to pay for care – and the attorneys who help them manage the legalities of a complex system. They spoke of the reality, not the myth.

If you haven't registered for the June Tri-Annual Practice Enhancement Retreat we're filling up fast and Early Bird pricing expires soon!  Don't miss THE estate and elder law event not to be missed! Click here to register now and reserve your spot!

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