Helping You Secure Veterans Benefits
Pensions for Veterans and their Spouses
In Need of a Speaker?
Let Us Know
Call today to schedule a free speaking engagement for your organization, church, or group. We speak on a variety of informative legal topics affecting elderly people and the special needs community.
6 FREE SEMINARS
May was Older Americans Month...
and The Elder Law Office of Emma Hemness sponsored 6 seminars/workshops from May 1-22nd for Seniors and Senior Caregivers.
If you are looking for extra funds to help defray the cost of your long term care, then you may be missing out on a benefit provided through the Veterans Benefits Administration of which very few people are aware. These extra dollars can be used to pay for care in your home, in an assisted living facility, or in a nursing home.
Attorney Emma Hemness is accredited by the VA. She can help you secure these benefits. And, through proper legal planning Emma can assist you in meeting the strict financial eligibility criteria discussed below.
As of June 23, 2008, the VA published a federal rule REQUIRING that ANYONE who assists a veteran or family member with the preparation, presentation and prosecution of a claim for benefits to be ACCREDITED by and through the VA BEFORE they can legally provide assistance. Thus, to protect yourself while going through the VA process, make sure you are using an accredited agent. To check if a person is accredited, you can go to: http://www.va.gov/ogc/apps/accreditation/index.asp and type in their name for confirmation. (A one time agent – usually a family member – does not need to be accredited). Attorney Emma Hemness has been accredited through the VA since 2008.
Pension for War Time Veterans and Spouses
There is a pension available to certain veterans and their spouses through the Veterans Benefits Administration (VBA). It is an income stream paid out on the basis of a veteran’s service during an established war-time period, such as World War II or Korea. The pension is not related to any injury received by the veteran during military service. In fact, it is a “non-service connected” disability pension.
As mentioned above, the pension is paid out on the basis of the veteran’s war-time service. It is available to veterans that meet 3 basic eligibility criteria (medical need; asset test; income test), explained in more detail below. It is also available to widows of veterans that meet the basic criteria. And, in very specific circumstances, a pension is available for ill spouses of healthy veterans.
This pension is referred to by many names, not all of them being entirely correct. We will refer to it as the VA “Aid & Attendance” pension. It is made up of a low income or base pension plus a supplemental amount. It may also be called the “Improved Pension” or “Special Monthly Pension”. Also, the A&A pension should not be confused with service-connected compensations that are based upon the severity of injuries incurred during military service.
If a veteran meets eligibility for the A&A pension, then the maximum monthly benefit paid to the veteran is $1644. If the veteran has a dependent (a spouse), then the maximum monthly benefit paid to the veteran is $1949. For the widow, the amount of the maximum monthly benefit is $1056. And, for the ill spouse of a living healthy veteran, the maximum monthly benefit paid to the veteran is $1291. It is also important to note that a base pension of $985 is available to all veterans who have low income levels. When paid, these funds are tax fee income. (These amounts are set each year on December 1. These are 2009 levels and were not changed for 2010 or 2011.)
In order to attain some portion of the A&A pension, all eligibility criteria must be met. If the veteran is unmarried, then he needs to meet all criteria. If the veteran has a dependent (a spouse), both he and the dependent must meet the criteria. The criteria includes certain terms of military service by the veteran. The criteria also requires a certain level of medical need. As well, a financial need must be demonstrated by meeting an asset test and an income test.
In order for the veteran to meet the terms of military service, the veteran must have served at least one (1) day during a designated war time period, with a minimum total service of 90 days of active duty. (According to the VA, the war time periods often began earlier than the War and ended later than the War.) Except in very rare cases, the veteran did not have to serve in the actual war zone or overseas. Finally, the veteran must have received a discharge that is an thing other than dishonorable.
Marriage to the Veteran
An additional criteria for spouses of the veteran – the widows or widowers – is the proof of the marriage to the veteran. Because this benefit is dependent upon the veteran’s military service record, the widow or widower must have been married to the veteran at the time of the veteran’s demise. This benefit cannot be obtained if the widow or widower either: divorced the veteran; and/or the widow or widower remarried after the veteran’s demise.
In order to prove medical need for A&A pension, the veteran must be determined to have a permanent and total disability. The general rule is that the veteran must require “the aid and attendance of another person to avoid the hazards of his/her daily environment.” More specifically, this means: a veteran or widow(er) must be blind; living in a nursing home; or, the veteran or widow(er) is unable to dress/undress or keep self clean and presentable; unable to attend to the wants of nature; or has a physical or mental incapacity that requires assistance on a regular basis to protect self from daily environmental hazards. On most occasions, the VA’s pension office will accept a determination from the veteran’s or widow(er)’s own physician as to the disability. Attorney Emma Hemness helps assist you in getting this physician’s determination by educating you on the formats known to be acceptable to the VA.
Since the A&A pension is based upon financial need, a veteran or widow(er) will not receive the benefit without meeting certain minimum asset levels. The VA refers to these asset requirements as “net worth”. The net worth requirements considers the assets of the veteran; and it also considers the assets of the veteran’s dependent (the spouse) if the veteran is married. All assets are considered in the net worth determination, except where those assets are specifically exempt such as a vehicle and a home. This means that all real property, bank accounts, life insurance cash value, stock and bonds, IRAs, retirement accounts, boats, cars and trucks count toward the net worth determination. And, in limited circumstances, the net worth of an adult child living in the home of the veteran or widow(er) may also be counted.
Calculating the appropriate net worth level is involved. There is no set asset level. A common misunderstanding is that the value of $80,000 is a given figure. This is not necessarily true as, in recent years, the VA has been applying a life expectancy analysis to the value of the veteran’s or widow(er)’s net worth. In one case, a 95-year old veteran was denied his A&A pension even though he had little more than $35,000.
It is important that you work with an attorney who has experience with these net worth determinations and all available methods for decreasing net worth levels. Let Attorney Emma Hemness guide you through these rules and regulations so that you have the best possibility of success.
All income in the veteran’s name will be counted in determining eligibility. Income includes social security, railroad retirement, pensions, and IRA distributions. If the veteran is married, then the dependent’s (the spouse) income is also considered in the calculation. As a general rule, if the veteran’s and/or widow(er)’s income is greater than a prescribed Maximum Annual Pension Rate (MAPR), then the veteran and/or the widow(er) will not meet the income test. However, there is an exception to this general rule.
For any amounts of income paid out on unreimbursed medical expenses (UMEs) of the veteran and/or widow(er), there is a corresponding reduction in the total annual income up to 95% of the UMEs. If a veteran and/or widow(er) has significant UMEs, then the veteran and/or widow(er) essentially lowers his or her total annual income below the VA’s income levels.
What are a few examples of UMEs? Medicare supplemental premiums and Part B and Part D premiums. Out of pocket doctor's and dentist’s fees and co-payments for medical services and prescriptions. Also included in UMEs are the costs of care, such as the monthly rent paid to an Assisted Living Facility or home health companies for in-home care services. With appropriate legal planning, even the adult child caregiver can be paid, which allows such payments to be considered UMEs.
When Is There a Fee for Assistance?
Attorneys may charge a legal planning fee to assess whether there are any benefits you may be eligible for through the VA and develop a comprehensive plan to enable you to achieve these benefits. However, no one, not even an attorney, can charge you to assist with the preparation, presentation, and prosecution of your claim.
By working with Attorney Emma Hemness, she will analyze whether you may be eligible for benefits through the Veterans Benefit Administration. As she discusses your specific circumstances, she will develop and offer you multiple methods to achieve the benefit. You will be able to choose the comprehensive legal plan that works best for you and your family. Not only will Emma develop a plan to achieve A&A eligibility, she will be guiding you to protect your assets for your future needs.
Please be aware that there are many individuals, usually non-lawyers, that claim to have special knowledge for assisting veterans and widow(ers) achieve this benefit. Often these representatives are narrowly focused and do not discuss all the options available for achieving immediate eligibility for the A&A pension. They only discuss the one that may result in a monetary benefit, such as a commission, to them. ASK QUESTIONS!! Although the option they suggest may achieve eligibility, it may have disastrous ramifications in the future.
For instance, it is not uncommon for certain representatives to solely recommend the use of a single premium immediate annuity to bring the net worth of the veteran or widow(er) below a certain level. However, the annuity is NOT always the best choice. In order to establish the annuity with the insurance company, a sizeable portion of assets may have to be liquidated resulting in early surrender penalties and capital gains. And, with the use of an income annuity, incomes of the veteran or widow(er) increases, making it more difficult to meet the VA income test. Also, if Medicaid benefits are needed in the future when/if the veteran’s or widow(er)’s health declines, Medicaid will be able to count ALL the income in the annuity; and the state will be the beneficiary of the income even after the veteran or widow(er) dies.
Asset Protection Planning, whether in the context of VA A&A benefits or Medicaid long term care, it is critically important before moving forward with particular strategies that you have been educated as to all the legal planning options you have and how the course you follow impacts other benefits programs. Only attorneys can discuss the law with you. And, only attorneys can prepare legal documents for you. Attorney Emma Hemness can help you. She enjoys educating her clients on their choices before developing a comprehensive plan for them.