Veterans Aid and Attendance Attorney

 

 

  • Who Is Eligible?

  • What Is the Amount of the Benefit?

  • Income Test

  • How is the Aid and Attendance Benefit Calculated?

  • Filing a Claim

  • Net Worth Test

  • Look-back Rule

  • Penalty Period

    Evan H. Farr is an Accredited Attorney with the U.S. Dept. of Veterans Affairs.  The Farr Law Firm is an Elder Law and Estate Planning Firm that also specializes in helping Veterans and their spouses obtain the financial assistance to which they are entitled. If you are a Veteran or spouse of a Veteran and you need assistance in your home, or are living in or considering moving into an Assisted Living Facility or Continuing Care Retirement Community, please contact us to see if you might qualify for the Veterans Aid and Attendance Special Pension Benefit or the Veterans Housebound Special Pension Benefit.

    Who Is Eligible for Veterans Aid and Attendance?

    To receive the Aid & Attendance Special Pension Benefit or Housebound Special Pension Benefit, a qualified veteran must have served on active duty, at least 90 days, with at least one day of service during a period of wartime.

    The evidence must establish that the veteran or spouse needs “regular” aid and attendance from someone else, not that there be a 24-hour need. There must have been a non-dishonorable discharge. Single surviving spouses of qualified veterans are also eligible. If younger than 65, the veteran must be totally disabled. For Merchant Marine service, the veteran must have been stationed on a ship for at least 90 days of active duty between December 7, 1941, and August 15, 1945. Veterans who entered active duty after September 7, 1980, must have either served 24 months or the full period for which they were called into active duty with at least one day during a wartime period defined above. If age 65 and older, there is no requirement to prove disability. However, the veteran or spouse must require regular aid and attendance due to: Inability of the claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself (herself) through the loss of coordination of upper extremities or extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance regularly to protect the claimant from hazards or dangers incident to his or her daily environment.

    Determinations of a need for the aid and attendance or housebound benefit is based on medical reports and findings by private physicians or from hospital facilities. Authorization of aid and attendance or housebound benefits is automatic if the evidence establishes the claimant is a patient in a nursing home or that the claimant is blind or nearly blind or having severe visual problems.

    Periods Designated As Wartime:

    World War II
    December 7, 1941, through December 31, 1946

    Korean Conflict
    June 27, 1950, through January 31, 1955

    Vietnam Era
    August 5, 1964, through May 7, 1975; for veterans who served “in country” or “off the coast” before August 5, 1964, February 28, 1961, through May 7, 1975

    Gulf War
    August 2, 1990, through a future date to be set by law or Presidential Proclamation

    What Is the Amount of the Aid and Attendance Benefit?

    In 2021, the Veterans A&A Pension can provide up to the following maximum amounts (called the MAPR or Maximum Annual Pension Rate):

    Single sick Veteran ~ $23,238 per year / $1,936 per month
    Healthy Veteran with sick spouse ~ $18,243 per year / $1,520 per month
    Married sick Veteran ~ $27,549 per year / $2,295 per month
    Married Veterans, Both Veterans sick ~ $36,861 per year / $3,071 per month
    Surviving Spouse ~ $14,934 per year / $1,244 per month

    Sources:
    lowVeterans Pension Rate Table 
    Surviving Spouse Pension Rate Table

    Is Aid and Attendance Only For Low-Income Veterans?

    No, and this is the primary reason that this benefit is so widely misunderstood. If you speak to a Veterans Service Representative in a regional VA office and ask them about the Veterans Aid and Attendance benefit, they will typically ask for your household income.  When you tell them your household income, they will compare it to a chart and most often tell you that you earn too much income to receive the benefit.  While the information they provide may be technically accurate, what they typically don’t explain is income for Veterans Administration purposes (called IVAP) is actually your household income minus your recurring, unreimbursed medical and long-term care expenses.  These allowable, annualized medical expenses are such things as health insurance premiums, home care expenses (including the cost of paying a family member or other private person to provide care), the cost of adult day care, the cost of an assisted living facility, or the cost of a nursing home.
    To be able to receive the Veterans Pension with Aid and Attendance benefit, the veteran household cannot have adjusted income (i.e., household income minus unreimbursed medical expenses) exceeding the Maximum Allowable Pension Rate — MAPR — for that veteran’s Pension income category. If the adjusted income exceeds MAPR, there is no benefit. If adjusted income is less than the MAPR, the veteran receives a Pension income that is equal to the difference between MAPR and the household income adjusted for unreimbursed medical expenses. The Pension income is calculated based on 12 months of future household income but paid monthly.

    How is the Aid and Attendance Benefit Calculated?

    The monthly award is based on VA totaling 12 months of estimated future income and subtracting from that 12 months of estimated future, recurring, and predictable unreimbursed medical expenses. Allowable medical expenses are reduced by a deductible to produce an adjusted medical expense which in turn is subtracted from the estimated 12 months of future income.

    The new income derived from subtracting adjusted medical expenses from income is called “countable” income or IVAP (Income for Veterans Affairs Purposes). This countable income is then subtracted from the Maximum Allowable Pension Rate — MAPR — and that result is divided by 12 to determine the monthly income Pension award. This award is paid in addition to the family income that already exists.

    Unreimbursed Medical Expenses

    Any amounts paid within the 12-month annualization period regardless of when the indebtedness was incurred.
    See 38 CFR 3.278 for the definition of what constitutes a medical expense.

    Medical Expenses Deducted from Income

    Medical expenses are those that are either medically necessary or improve a disabled individual’s functioning. These medical expenses are deducted from income to calculate IVAP. This calculation is complicated when the claimant is receiving home care or is in an independent or assisted living facility, as the new rules limit the circumstances under which room and board expenses may be counted, as well as the amount paid. There are very specific rules as to which services qualify as medical expenses and the claimant will have to be able to identify those in his/her application. Payments for meals and lodging, as well as payments for other facility expenses not directly related to health or custodial care, are medical expenses only when either of the following is true: (A) the facility provides or contracts for health care or custodial care for the disabled individual; or (B) a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that the individual must reside in the facility (or a similar facility) to separately contract with a third-party provider to receive health care or custodial care or to receive (paid or unpaid) health care or custodial care from family or friends.

    Filing a Claim

    Filing a claim for the Veterans Aid and Attendance Pension Benefit is complex and time-consuming. If you want to do it correctly, it’s important to get qualified assistance. Just knowing which form to fill out and how to complete it is a complex endeavor in itself. Even if the proper form is completed, failure to check a single box may result in complete denial of your claim.

    The application process involves: obtaining evidence of prospective, recurring medical expenses; appointments for VA powers of attorney and fiduciaries; and a thorough understanding of the application process.  Typically, qualification for this benefit involves the reallocation of assets and shifting of income to qualify, and these reallocations may have a significant impact on Medicaid eligibility.

    Given that many veterans who need the Aid and Attendance Benefit will eventually wind up also needing Medicaid, this process should not be attempted without the help of a qualified elder law attorney who thoroughly understands both the Veterans Aid and Attendance Benefit and the Medicaid program, as well as the interaction between these two benefit programs.

    We assist Level 4 clients of our firm, at no charge, in completing the required paperwork and obtaining this benefit.

    One of the documents needed to commence a claim for this benefit is the Veteran’s Discharge Documents (DD-214 Report of Separation).  If you don’t have an original DD-214, most veterans and their next-of-kin can obtain free copies of their DD Form 214 and other military and medical records by going to the following web site: http://www.archives.gov/veterans/military-service-records/. 

    The VA also sometimes will accept a copy of the order form for the DD-214.  On the order form, we must write the date that you mailed it to The National Archives Records Management to show that you are trying to get a certified copy.

    You may also request a copy of the DD-214 if it was filed with the county clerk’s office or online through the Department of Defense milConnect application at https://milconnect.dmdc.osd.mil/milconnect.

    Note: In 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis destroyed records held for Veterans who were discharged from the Army and Air Force during certain periods of time. Your records may have been destroyed in the fire if you were discharged from the Army between November 1, 1912, and January 1, 1960, or if you were discharged from the Air Force between September 25, 1947, and January 1, 1964. If you think your records may have been involved in this fire, find out how to get help filing a claim.

    The Net Worth Test and Penalty Divisor

    The Net Worth Limit effective 12-01-2020 is $130,773 (Penalty Period Rate is $2,295). Net worth will be determined by combining assets and annual income (IVAP). A veteran’s assets and income are defined to include both the assets and income of the veteran and the assets and income of the veteran’s spouse if married.

    Calculation of Net Worth:
    All Countable Assets + annual IVAP.
    Countable Assets include assets of the Veteran as well as the assets of the veteran’s spouse.

    The Look-back Rule on Asset Transfers

    Under old VA rules before October 18, 2018, there was NO transfer penalty. This meant that individuals could transfer excess assets and apply for VA benefits the next day. The new rules establish a three-year look-back period for asset transfers for less than fair market value; similar to Medicaid’s five-year look-back period. The penalty period is now calculated based on the total assets transferred during the look-back period to the extent they would have exceeded the new Net Worth Limit explained above.

    Exempt Assets:

    The Home (maybe): Under the new rules, the primary residence along with a lot size up to 2 acres (regardless of value), is exempt. Under the old rules, a residence and underlying/surrounding land “similar in size to other residential lots in the vicinity” were not countable. If most residences in the area were on 20 acres, the applicant’s residence and surrounding land would not be countable.

    The new rules impose this very worrisome 2-acre limit “unless the additional acreage is not marketable.” The examples given in the rules about nonmarketable acreage related to acreage “only slightly more than 2 acres,” property that might be inaccessible (surrounded by other owners, perhaps), or property subject to zoning limits that could prevent a sale. It is unknown what other factors might make additional acreage “not marketable.”

    Example: Under the old rules, you live in a rural home on 12 acres of land, not uncommon for your county, where most people have lots of between 10 and 50 acres. Under the new rules, you likely have 12 acres of countable real estate. Unless zoning laws or other “marketability issues” prohibit it, you would most likely have to subdivide your property so that your lot is only 2 acres. This process, of course, could take several years, so it will, in almost all cases, be simpler to simply transfer the entire house and land into our Living Trust Plus® Total Protection Trust and wait out the 3-year lookback.

    It is important to note that the house is not an exempt asset for Medicaid in Virginia, and in most states where it is “exempt” in connection with Medicaid, it is not truly protected because of Estate Recovery “clawback,” so houses must still be protected (generally using in a Living Trust Plus™ Total Protection Trust) because anyone who requires Veterans Aid and Attendance will most likely, at some point in the future, require Medicaid.

    Once the primary residence is sold, for Veterans Aid and Attendance purposes, the residence is no longer exempt because it has been converted to money, and that money will be countable as of January 1 of the year following the year of sale. Another reason that houses need to be protected, preferably in our Living Trust Plus® Total Protection Trust, before being sold.

    Family vehicles and personal items are used regularly.
    Note: Multiple vehicles are excluded so long as they are used for the veteran regularly; not so with Medicaid, which exempts only one vehicle.

    Pre-paid burials and burial plots.

    Any asset that was transferred or gifted before 10.18.18.

    Penalty Period

    Under the new regulations, veterans or their surviving spouse who transfer assets within three years of applying for benefits will be subject to a penalty period that can last up to 5 years.

    There is a complex calculation to determine the penalty period. The new rule uses a single penalty divisor for all claimants, which results in equal penalty periods for equal amounts of precluded asset transfers regardless of the type of claimant. The single divisor is the MAPR in effect on the date of the pension claim at the aid and attendance level for a veteran with one dependent.

    Only transfers of countable assets are penalized. Transfers of exempt (non-countable) assets are not penalized.

    Transfers are only penalized if they adversely affect Net Worth (i.e., if the transfer reduces net worth to less than the Net Worth Bright-Line Limit).

    Transfers to set up a SNT for a dependent child who was disabled before the age of 18 are not penalized.

    There are exceptions to the penalty period for fraudulent transfers and for transfers to a trust for a child who is unable to provide “self-support.”

    Under the new rules, the VA will determine a penalty period in months by dividing the amount transferred that would have put the applicant over the net worth limit by the maximum annual pension rate (MAPR) for a veteran with one dependent in need of aid and attendance.

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