Bar Bulletin: Veterans Aid and Attendance subsidizes long-term care


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  • | 12:00 p.m. January 11, 2016
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Many of my clients who are veterans and their surviving spouses are unaware of “non-service connected” funds that may assist them in paying long-term care costs. Most attorneys are unaware of this funding.

Veterans Aid and Attendance is a means-tested program that is a pension that includes an Aid and Attendance allowance.

It qualifies many veterans for additional monthly funds to help pay for caregivers in the home, assisted-living facilities and other long-term care costs.

The veteran may not be entitled to “service-connected compensation,” but may still be eligible for this improved pension.

Unfortunately, this funding will be very difficult for many of our veterans to receive commencing mid-2016.

Right now, there is a limited opportunity for our veterans and their surviving spouses to consider.

If a veteran serves 90 consecutive days, including one day during a war time (that does not mean the veteran had to be involved in combat), they or their surviving spouse may be eligible for this funding.

Many of my clients would like to stay at home or stay in assisted living, but in order to do so, they need caregivers.

Congress established Aid and Attendance to assist the veteran or the veteran’s surviving spouse with paying for caregivers and long-term care costs.

Aid and Attendance may be used if most or all of the veteran’s income is being used for medical care expenses and costs. Most of the time, assisted-living expenses exceed the veteran’s income and qualify him or her for this funding.

A single surviving spouse of a veteran may receive over $1,100 per month, if fully eligible. A single veteran may get over $1,700 per month and a married veteran may get more than $2,100 per month if they are fully eligible.

If the veteran’s medical expenses exceed his or her Social Security, pensions and required minimum distributions, this benefit should be considered.

Also, the veteran has to have limited resources to be fully eligible. Public information represents the veteran can possess up to $80,000 in assets.

Experience shows the veteran has to have much less than this in order to be eligible for Aid and Attendance.

Medicaid has a five-year look-back. This means if the applicant gives away property for less than fair market value within five years of applying for Medicaid, the applicant may be ineligible for Medicaid benefits for a period of time. Aid and Attendance currently does not have a look-back restriction.

In January 2015, however, the Department of Veterans Affairs proposed a rule. If the rule is implemented, a veteran would be subject to a look-back restriction similar to the Medicaid look-back period.

Unfortunately, the veterans department’s look-back period is more stringent than the Medicaid look back period and will cause many possible veterans that are currently eligible for Aid and Attendance to be denied this funding.

There is uncertainty when this rule will be applied and what the final provisions will allow and restrict. Public comments may influence the department on what provisions the final rule will have.

The rule has not been implemented at this time, but many of my colleagues believe that it will most likely be implemented sometime in mid-2016.

With any government regulation, we are uncertain whether the application of this rule will be prospective only or retroactively applied.

In many cases, when the government agency changes a rule that significantly impacts substantive property rights, the rule is applied prospectively only.

If this rule is applied prospectively only, there is a window of opportunity for a veteran or veteran’s surviving spouse to reduce assets to achieve Aid and Attendance eligibility.

If the planning that is accomplished now is grandfathered in, the veteran’s family may be able to set aside valuable assets now to assist and supplement their Aid and Attendance in the future.

If you would like more information on planning opportunities, please contact an elder law attorney who is accredited with the Veterans Administration.

Attorney or agent accreditation can be confirmed at va.gov/ogc/apps/accreditation.