Lawyers With Purpose

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.

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

 

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. 

 

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.

 

Related articles

VA Pension Claims: What to Include and Exclude

Crime Bill Introduced to Protect Veterans

Congressmen Tom Rooney (R-FL) and Ted Deutch (D-FL) introduced the “Preventing Crimes Against Veterans Act of 2016” on March 2. Rooney, an Army veteran, is a member of the House Appropriations Subcommittee on Veterans Affairs.

Rep. Rooney asserts that veterans in his district have brought to his attention that individuals are promising to expedite veterans’ claims through the horrendously backlogged system. After charging an exorbitant fee, the individual can no longer be found. Rooney has not stated whether these individuals are accredited by the Veterans Administration or not.

The bill would be an additional tool to prevent fraud against veterans. It would impose fines, imprisonment for up to five years, or both for anyone who “knowingly engages in any scheme or artifice to defraud a veteran of veterans’ benefits, or in connection with obtaining veteran’s benefits for that veteran.”

Rep. Rooney was involved in introducing the three-year look back penalties for veterans who transferred assets for less than fair market value. It is unclear whether this bill is intended to extend to practitioners who provide veterans benefits planning and long-term care planning advice to wartime veterans seeking pension benefits. This topic does not come up in his one-minute speech to Congress when introducing the bill, which can be seen here: https://rooney.house.gov/media-center/videos/preventing-crimes-against-veterans-act-one-minute. It can be argued that it will, given that the bill uses the generic language of “and for other purposes.”

Here is the text of the entire bill as it was introduced: 

HR. 4676

To amend title 18, United States Code, to provide an additional tool to prevent certain frauds against veterans, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

March 2, 2016

Mr. Rooney of Florida (for himself and Mr. Deutch) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to provide an additional tool to prevent certain frauds against veterans, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Preventing Crimes Against Veterans Act of 2016”.

SEC. 2. ADDITIONAL TOOL TO PREVENT CERTAIN FRAUDS AGAINST VETERANS.

(a) In General.—Chapter 47 of title 18, United States Code, is amended by adding at the end the following:

“§ 1041. Frauds regarding veterans’ benefits.

“(a) Whoever knowingly engages in any scheme or artifice to defraud a veteran of veterans’ benefits, or in connection with obtaining veteran’s benefits for that veteran, shall be fined under this title, imprisoned not more than five years, or both.

“(b) In this section—

“(1) the term ‘veteran’ has the meaning given that term in section 101 of title 38; and

“(2) the term ‘veterans’ benefits’ means any benefit provided by Federal law for a veteran.”.

(b) Clerical Amendment.—The table of sections at the beginning of chapter 47 of title 18, United States Code, is amended by adding at the end the following new item:

If you would like to learn more about adding Veteran Benefits Planning to your estate or elder law practice join our free webinar on Thursday, April 21st at 8EST. Just click here to reserve your spot today.

This is a FREE training webinar designed for attorneys who wish to add Estate Planning, Asset Protection, Medicaid, or VA Planning to their practice, or signifcantly improve on their existing business using our PROVEN and paint-by-number strategies for:

• Attracting higher quality clients who insist on working only with your firm (...and demanding their friends and family do the same!)
• Generating countless referrals from respected professionals and colleagues in the community.
• Automating and systematizing your practice in such a way that allows for higher volume...without work falling through the cracks, balls dropping, or having to work 80 hours a week just to keep up!

Victoria L. Collier, Co-Founder, Lawyers with Purpose, LLC, Certified Elder Law Attorney through the National Elder Law Foundation; Fellow of the National Academy of Elder Law Attorneys; Founder and Managing Attorney of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Veterans Advocates Group of America; Entrepreneur; Author; and nationally renowned Presenter.

VA Health Benefits

Given how much the Veterans Health Administration (VHA) has been in the news for unnecessary wait times and inappropriate scheduling practices that have negatively impacted many veterans, you may not see any value in educating your clients regarding potential VA health benefits. However, VA health benefits might offer more economical health care and/or may be an option for your clients who are underinsured. Another advantage is greater access to health care nationwide, as you may seek care at any VA health care facility once enrolled in the VA health care system.

What are they exactly?

When you enroll in VA health care, you are eligible for what is termed a Medical Benefits Package. This package consists of hospital, outpatient, and extended care services providing basic and preventive care, as well as prescription drugs, emergency care and even in some cases, services like: rehabilitative services; professional counseling and mental health services; durable medical equipment, including eyeglasses and hearing aids; home health services; reconstructive (plastic) surgery; hospice care; and dental care. What exactly is available to the recipient of VA health benefits will depend on the veteran’s unique eligibility status and whether such care or services are deemed medically necessary by VA health care providers. You receive a booklet called the Veterans Health Benefits Handbook after enrollment that gives you the specifics of your individual Medical Benefits Package.

Who qualifies for them?

If your client served in the active military, naval or air service and was discharged under any condition other than dishonorable, the client may qualify for VA health care benefits. There is a minimum duty requirement for veterans who enlisted after September 7, 1980, but there are also many exceptions both before and after this date, so you should consult 38 CFR §17.31 Duty periods defined for the definitions of duty periods applicable to eligibility for medical benefits.

Although family members, with very limited exception, cannot access the VA health care system, family members of veterans may be eligible for CHAMPVA. This is a program that provides health insurance coverage to dependents of a qualifying sponsor who is, or was at the time of death, rated permanently and totally disabled due to a service-connected disability or who died of a service-connected disability.

How do you enroll?

You can apply for VA health care by completing VA Form 10-10EZ Application for Health Benefits and submitting it in person or by mail to the enrollment coordinator at any VA Medical Center. The 10-10EZ form has sections to complete with information about military service, health insurance, and finances. Private health care insurance does not affect eligibility for VA health care. The instructions for the financial section specify that only non-service-connected and service-connected veterans rated at 0% must provide this financial information. However, they go on to state that those receiving VA pension or compensation and/or Medicaid benefits, among others, are not required to disclose financial information. In fact, after a claimant is approved for non-service-connected pension, he/she should be automatically mailed enrollment information for the VA health care system. The financial information is used to determine eligibility and copay responsibility for VA Health Benefits and – with the exceptions noted above – may be a requirement of enrollment.

More information

As part of enrollment, the applicant is assigned to a Priority Group based on the severity and nature of the applicant’s disability and/or income. There are eight Priority Groups for enrollment, from highest priority at #1 to the lowest at #8:

1. Veterans with service-connected disabilities 50% or more disabling, or those unemployable due to service-connected conditions;
2. Veterans with service-connected disabilities 30% or 40% disabling;
3. Veterans who were Prisoners of War (POWs), were awarded the Purple Heart or Medal of Honor, whose discharge was for a service-connected disability, with service-connected disabilities 10% or 20% disabling, or special eligibility under Title 38, U.S.C. § 1151;
4. Veterans receiving aid and attendance or housebound VA benefits or who have been determined by the VA to be catastrophically disabled;
5. Non-service-connected veterans and non-compensable service-connected veterans rated 0% disabled with annual income below the VA’s and geographically (based on your resident ZIP code) adjusted income limits, veterans receiving VA base pension benefits, or eligible for Medicaid programs;
6. Compensable service-connected veterans rated at 0% and various categories of veterans whose military service meets certain requirements;
7. Veterans with gross household income below the geographically adjusted income limits (GMT) for their resident location;
8. Veterans with gross household income above the VA and the geographically adjusted income limits for their resident location.

The Priority Group assignment will determine what the VA Health Benefits enrollee will pay, if anything, in copayments for their health benefits. Generally, the cost of care is free when related to service-connected disabilities, but there may be a copay for all other services, to include prescriptions.

Despite the fact that, when the VHA makes headlines, it’s often not for a good reason, the news isn’t all bad. The VA has taken corrective action to identify and resolve the issues that have plagued the VHA, including requesting the VHA to conduct an audit which then led to the Accelerating Access to Care Initiative. The VA also publishes comprehensive monthly updates detailing pending and completed appointments and average wait times that allow for oversight, and also allow a beneficiary to select a VA Medical Center with lower wait times when there is more than one in their area. For further information on Veterans Health Benefits beyond this overview, consult the website of the Veterans Health Administration at http://www.va.gov/health/.

If you aren't a Lawyers With Purpose member and want to learn more about how we can help you in your estate or elder law practice, click here and join our FREE webinar on Thursday, April 21st at 8 EST "Four Essentials For A Profitable Practice".  On this one hour webinar, you'll discover:

 

• How to turn the complexity of Medicaid and Asset Protection Laws into simple value creation that is easy for clients to identify, allowing you to enroll more prospects into paying clients.
• Proven ways to get to YES faster and EASIER...with less "selling," pressure, or having to later overcome buyer's remorse.
• Why a confused or overwhelmed client will always say NO, and how to instead "show the law" (not TEACH IT) to more effectively earn new business.
• The key "stories" you must tell during the initial meeting (or workshop) so that clients can relate and deeply understand the value you provide (...even when your services cost 5X more than the competition down the street!).
• How to implement time management secrets of successful entrepreneurs, so that you are able to do more in your practice in less time, and have free time left over to do what you love.
• Effective ways for working on the business (not in the business) in order to master lead generation, lead conversion, and serve your clients to create consistent cash flow.
• Discover the key metrics that should be the sole focus of managing your practice...and how successful estate planning and elder law attorneys leverage tracking and reporting to reach their goals.
• Discover the five essential roles that you and your staff must fill to achieve a consistently profitable practice.

Click here to register and reserve your spot now.

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

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

Is the VA Opportunity Dying?

As the Veterans Administration plans to implement new laws that would impose a three-year look back for gifts, creating penalties of up to 10 years for both transfers of assets and purchase of annuities, lawyers frequently ask me, “Are we going to be able to do any planning and help wartime veterans and their widows anymore?” What they are really asking is, “Will these changes hurt my law firm?” and “Do I need to stop doing VA benefits planning?”

The simple, candid answers are: “Yes, possibly” and “No, the clients need you now more than ever.”
There is no doubt that the current way of doing things will change. For example, “crisis” VA planning (where an individual could do planning one month and be eligible for benefits the next month) will be reduced to those clients who have limited funds who seek only pre-application consultative advice. Thus, instead of being able to charge for a plan of eligibility, the lawyer may only charge a consultation fee. As always, no one will be able to charge to assist with the completion and filing of an application for benefits.

Even though crisis VA planning will be virtually dead, a new age of pre-planning will emerge. Like Medicaid planning, wherein people structure five-year “wait and see” asset protection plans, veterans will need to construct three-year planning options. This will lead to a new opportunity for advocates to create excellent estate plans that address traditional estate planning and death distribution desires, as well as VA benefits and future Medicaid benefits. This will also lead to the opportunity for licensed insurance brokers to reposition assets into three- to five-year immediate annuities to create guaranteed income streams to pay for the client’s living expenses and health care needs during the look back period. Instead of competing for business, lawyers and financial advisors should work together to create a solid long-term care plan, or, if permissible in your state, the lawyer should consider obtaining a license to sell insurance products to keep the plan under one roof and bolster income at the same time.

The look back and resulting penalties are not the only proposed law changes. The VA also plans to limit not only the acreage that applicants may have attached to their home place, but also the deductibility of certain medical expenses, etc. With all of the changes and the remaining ambiguity in the processing of the claims due to the language of the changes, clients will need lawyers to assist with appeals. Lawyers can charge reasonable fees, as approved by the VA, after a notice of disagreement has been filed. Presumably not many lawyers will want to do appellate work, leaving the field wide open for those who do.

If you want to learn more about Lawyers With Purpose and what we have to offer our members join our FREE WEBINAR on Thursday, April 21st at 8 EST / 5 PST titled "Four Essentials For A Profitable Practice". Click here to join us.  Here is just some of what you'll  get:

• Discover the Four Essentials for a Profitable Practice - Turn the complexity of Medicaid and asset protection laws into simple value creation that is easy for clients to identify.
• Get Access to the Time Management Secrets of Successful Entrepreneurs - Spend your time working on the business (not in the business)...master lead generation and lead conversion and serve your clients to create consistent cash flow.
• Discover the Key Metrics that Should be the Sole Focus of Managing Your Practice - Learn how successful estate planning and elder law attorneys leverage tracking and reporting to reach their goals.
• Discover the Five Essential Roles You and Your Staff Must Fill to Achieve a Consistently Profitable Practice - And much, much more....

Click here to reserve you're spot today.

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 Defense of My Smartphone – By a Generation Xer

On the second day of the Lawyers with Purpose Tri-Annual Practice Enhancement Retreat in Orlando, there was a focus session on the Infrastructure Track called “Bridging the Generation Gap,” presented by Susan Hunter. My presence there was mandatory, as I had been assigned to administrative duties as an employee of Lawyers with Purpose. However, it was also my treat, because I am a big fan of Susan’s presentations and knew I was in for an informative and humorous session – and I was right. Susan talked about the three generations that make up her law firm team: The Baby Boomers, Generation X, and the Millennials. She also explored the challenges and opportunities that may occur when working with someone not from your own generation, as well as the growth mindset needed to bridge this gap.

Among the various characteristics of the Millennials noted was their hyper-ease with technology, especially social media, predominantly via smartphones. It was cited that 98% of Millennials have a smartphone. And it is the smartphone that is usually blamed for promoting isolation and the decrease in face-to-face interactions in real time – not FaceTime. But, in defense of my smartphone, I found that I related more to the Millennials who work in our firm during this trip because of it than I think I would have otherwise. Don’t get me wrong, there was also plenty of good, old-fashioned team building in the form of conversations, brainstorming, card and board games, as well as one night with a home-cooked meal prepared by team members. However, I must confess that our smartphones did play an important part in bringing us together as a team.

My use – excuse me – our use of the smartphone during our road trip from Atlanta to Orlando as well as during the retreat was interactive. First and foremost, we used it to get information like researching recommended places to eat along I-75 or finding the cheapest gas when it was time to refuel. We also used the mapping capabilities of the smartphone extensively to direct us on our route, avoid traffic, and keep us up to date on our ETA despite the pit stops. Then there is what may be the default use of the smartphone: communication. Our firm stayed at a timeshare condo a few minutes from the hotel where the retreat occurred, and this required some coordination to accommodate the needs of all nine team members. We relied on text messages and calls to remain in contact and synchronize needed rides. During the road trip, we would also send regular text messages to Victoria, our supervisor, to give her status updates on our arrival both to Orlando and Atlanta.

Another way we communicated via smartphone was by sharing photos the team took. This included sharing funny pictures of Goofy and the team at the reception, but they also served to document our team’s work at the retreat, like the photo we shared of our completed, collaborative Brainstorming Sprints sheet. Lawyers with Purpose even provided a smartphone app called EventBoard for the retreat and the Practice with Purpose program. The app provides an interactive conference event guide with the schedule, speaker information, sponsors and their websites, floor plans, and online evaluation forms. I really like how the events grayed out on the schedule as the day went on so you could immediately see the highlighted current and upcoming sessions. Sure, there were technical difficulties. When I first opened the application, no details loaded for the sessions and the evaluation forms were blank. However, once I closed the other 20 apps that I was unconsciously, simultaneously running on my iPhone, EventBoard worked quite well.

I will confess that my first sight of some of the Millennials in our firm on any given morning during the retreat was in bed by the light of a smartphone furiously typing. Perhaps they were well on their way to the 50 or more text messages that 50% of Millennials surveyed will send in a day. But I can’t blame them, as the first thing I did every night and every morning while away was to text my family to say “Hi.”

Finally, we used our smartphones to play music enjoyed by the team as a whole. We took turns depending on who had a particular song we wanted to hear. No one had brought a portable speaker, and the van’s stereo system had no speakers in the passenger area, thus we had to improvise with one of those pairs of giant headphones that Millennials often sport to broadcast the music for all to hear. As a result, the music was a little tinny and not as loud as I would have liked. Nonetheless, it relieved the monotony of the road trip as we sang, hummed, and/or danced to music from all three generations and, more importantly I think, moved in harmony as a great team should.

If you want to learn more about Lawyers With Purpose and in particular what it takes to have a successful practice, click here and download our FREE eBook "The Five Essential Roles for A Successful Practice".  

Here Is Just Some of What We'll Reveal:

• Discover the Five Key Roles that must be fulfilled to truly have a successful law firm.
• What you need at all five levels.
• How each role impacts the organization and its ability to perform.
• How each role interacts to achieve ultimate success.
• The bottom line of what you need to create a purposeful practice
• ... and so much more!

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.

House Bill 4351: Going After Pension Poachers

House Bill 4351 should be stopped!

For the past several years, bills have been introduced for Congressional approval that would impose a three-year look back, and penalties up to 10 years, for veterans and their spouses who give away their assets and then apply for a pension program designed for indigent wartime veterans. The bills were limited to addressing the concerns of deliberate impoverishment by veterans with the help of lawyers, financial advisors, and others. The bills never passed.

In January 2015, the Veterans Administration published proposed changes to the laws in the Federal Register that would change Title 38 of the Code of Federal Regulations. The VA included penalties for transfers of assets, and used very broad definitions of transfers (i.e. the purchase of an annuity), just like the previous bills that had been introduced. However, the VA went much further, proposing to (1) extend beyond its Congressional authority and (2) extend beyond the scope of the perceived needed changes.

Beyond VA Authority.

Under the pension program for wartime veterans, the claimant must meet an income and asset standard. With regard to income, the VA deducts from gross income all permissible medical expenses. Home healthcare is a permissible medical expense. But the VA proposed to limit the deduction to the average cost of home healthcare based on a national average set two years prior to the proposed changes, which would be $21 per hour. The law is clear that if a medical expense is deductible, then the entire amount must be deducted, and a change of this nature is in violation of the Congressional right.

Beyond the Scope

The purpose of the bills introduced into Congress and the purpose of the proposed changes to the VA regulations is to prevent people from divesting themselves of assets, which they otherwise could use for themselves to pay for care, in order to qualify for tax-free income from the VA to pay for their care. The VA exceeded the purpose of these bills when they included in the proposed changes a limitation on the lot coverage for veteran’s home place. The home place and a reasonable lot area have always been exempt by the VA when applying for pension. A reasonable lot area has always been defined as the same or similar in size to those in the same community or neighborhood. Rather than keeping the long-standing laws, the VA wants to count any property value that exceeds two acres. This makes no sense under the purpose of the law changes to keep people from divesting themselves of assets. First, a 900-square-foot condo in New York City may be worth well over $1,000,000, but it would be an exempt resource under the proposed changes. Whereas, a house sitting on five acres in south Georgia would be a countable resource, even if its value is only $150,000. Moreover, the veterans may have been living in the house for 10, 20, 30 years or more and had no intention of ever filing for the VA pension when they bought the house. Thus, the change in the law has nothing to do with the perceived abuses of people trying to save their assets and qualify for benefits.

Congress has apparently given up on trying to pass a bill that specifically details a look back and penalties for wartime veterans who give money away to qualify for the pension. After all, this is an election year and that would not look very good.

Nonetheless, a few members have found a sneaky way to get the VA’s proposed changes passed by Congress without Congress necessarily knowing what they are actually passing. House Resolution 4351, submitted in the House of Representatives on January 8, was sponsored by Rep. Matt Cartwright of Pennsylvania and co-sponsored by Rep. Sanford Bishop of Georgia, Rep. Sheila Jackson Lee of Texas and Rep. Walter Jones of North Carolina. It has been referred to the Committee on Veteran’s Affairs.

Its stated goal is “To protect individuals who are eligible for increased pension under laws administered by the Secretary of Veterans Affairs on the basis of need of regular aid and attendance from dishonest, predatory, or otherwise unlawful practices, and for other purposes.” The act would be titled, “Veterans Care Financial Protection Act of 2016.”

This sounds really good, because Congress is professing to protect veterans from financial predators. Second, the act does nothing more than mandate that the secretary of the VA work with the heads of federal agencies, states, and such experts as the secretary considers appropriate to “develop and implement Federal and State standards to protect individuals from dishonest, predatory, or otherwise unlawful practices.” The VA would then have 180 days to submit the standards to the Committee on Veterans’ Affairs of the Senate and of the House of Representatives. If this resolution passes, the VA can just hand over the proposed changes in the laws as the standards. The resolution does not say what the two committees are to do once they receive the standards from the VA.

The VA plans to finalize proposed changes (with modifications) by early summer. What is unclear is whether a passage of this “blind” resolution would immediately sanctify any changes the VA has made, or if the changes cannot take effect until after the two committees have taken some action of approval. What is clear is that advocates and veterans must once again push to make your political leaders, specifically those in the two Veterans’ Affairs committees, aware of these damaging changes that have no bearing on the purpose of the proposed changes – limiting home healthcare to an outdated national average and limiting the home place lot coverage to two acres instead of a reasonable lot for the area.

If you would like to know more about the VA Proposed 3 Year Lookback and Other Law Changes join our FREE WEBINAR on Wednesday, March 16th at 4EST. Click here to reserve your spot today.

Victoria L. Collier, Co-Founder, Lawyers with Purpose, LLC; Certified Elder Law Attorney through the National Elder Law Foundation; Fellow of the National Academy of Elder Law Attorneys; Founder and Managing Attorney of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Veterans Advocates Group of America; Entrepreneur; Author; and nationally renowned Presenter.

VA form 21-8049 – Request for Details of Expenses

For all you high Fact-finder/Follow through Kolbe types, don’t panic if the VA form 21-8049 number means nothing to you. It shouldn’t necessarily. If you file non-service-connected pension claims with the VA, you may never have had occasion to use this form, which is formally called a “Request for Details of Expenses.” It is not generally part of what Lawyers with Purpose considers a fully developed VA claim, although there are those who routinely include this form with all their VA claims.

Purpose of the 21-8049

As the name of VA form 21-8049 suggests, its main purpose is to report monthly non-medical expenses as well as expenses of dependents that otherwise are not typically reported on any other forms one submits with a fully-developed claim. The 21-8049 is usually sent to a claimant to be completed when the VA requires further information after the formal claim is filed. In fact, the VA specifically states in the instructions at the top, “We need additional information to determine whether you are entitled to benefits.” The VA may request this additional information because the adjudication manual directs the adjudicator to determine “whether or not the claimant’s financial resources are sufficient to meet his/her basic needs without assistance from VA. If a claimant’s assets are large enough that the claimant could use these assets to pay living expenses for a reasonable period of time, net worth is considered a bar,” M21-1 Adjudication Procedures Manual, Part V, Subpart I, Chapter 3, Section A.1.e. The 21-8049 may not be requested for every claim you file, but if it is requested, it can delay the claim process. For that reason, some choose to include this form with every formal claim they file. Or, you may decide to complete this form only when your claimant has unusually high non-medical living expenses that you want to make evident to the VA.

How to complete the 21-8049

The current version of this form is dated Aug 2007 in the lower left corner of the first page, although the VA still accepts older versions. It is a two-page form that consists of seven sections. The instructions are minimal, but the VA does provide a toll-free number to call for assistance. Like any other VA form, it is recommended that you complete every section. Non-applicable sections should be crossed out, or you should otherwise indicate that these do not apply. Sections I and II are for listing dependents – both those living with the claimant and those not living with the claimant. Furthermore, you can specify the amount, if any, that the claimant contributes to the support of dependents not living with the claimant so that the VA will consider these amounts when evaluating whether the claimant’s net worth is sufficient.

Sections III, IV, V, and VI are for “Monthly Expenses (except medical) for you and those listed above as living with you,” “Hospital and Medical Expenses,” “Educational Expenses,” and “Expenses of Last Illness and Burial of Veteran, Spouse, or Child and Just Debts of Deceased Veteran or Parent’s Spouse,” respectively. The completion of these four sections is fairly straightforward, but a few remarks should be made to avoid potential problems. Section III lists several possible monthly expenses, like Housing, Food, Taxes, etc., and it also provides blanks for inserting other types of expenses, but this section is only for reporting non-medical expenses. For example, the line item “Housing” should not be used for reporting fees for a nursing home or assisted living facility. Instead, total medical expenses that were reported on the VA form 21P-8416 “Medical Expense Report” with the formal claim should be reported in Section IV, “Hospital and Medical Expenses,” along with a brief breakdown of the medical expenses, or simply refer the VA to the already submitted form 21P-8416. Finally, section VII is for reporting “Commercial Life Insurance Payments” to the claimant. While life insurance payouts are not considered income by the VA if the insured was a veteran, these will be considered as part of net worth and could potentially put a claimant over the asset limit unless you can document to the VA that these assets have been spent down.

What to file with the 21-8049

Documentation of the expenses listed on this form is not required but may assist in your claim. If you decide you want to start including the 21-8049 with all your formal claims, you may decide not to include further supporting documentation unless later requested by the VA. If you do refer to the VA form 21P-8416 in Section IV, you may want at least to include a copy of this form for the adjudicator’s convenience. However, if the VA sent you the form 21-8049 to be completed, they may have requested other information as well. In such cases, ensure that you submit the VA form 21-8049 with anything else requested in the VA correspondence, and that you respond by any deadlines the VA may specify.

If you want to lear more about the Veterans Administration Proposed 3 Year Lookback and Other Law Changes join our FREE WEBINAR on Wednesday, March 16th at 4 EST. Just click here to reserve your spot.  Here's what you'll get:

Discover the Nuts and Bolts of the Proposed VA Changes...and What it Means for Your Practice!

On Friday, January 23, 2015, the Veterans Administration proposed changes in the Federal Register that would...

• Impose a three year lookback for transfers of assets, including gifts to persons, trusts, or purchases of annuities.
• Deny claims for up to 10 years due to transfers.
• And exempt only the home and two acres from net worth. If a claimant's property exceeds two acres, it will count toward the net worth figure for eligibility.

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.