September 18, 2015

2015-09-18 VA Pension Q&A with Attorney John G. Watts

Welcome to our Q&A on the VA Pension, or Aid and Attendance. The entire video is above, and the transcript is below. We apologize as we had some technical difficulties with the video quality but it seems the audio is fine. Hope this webinar is helpful to you.

I hope you enjoy!

John Watts


Hello my name is John Watts I’m an elder law attorney in Alabama. I welcome you to our weekly webinar on elder law issues. Now this week we’re going to focus on the VA pension or Aid and attendance which is a remarkable benefit for veterans. It can pay up to $25,000 a year tax free to help pay for long term care.

One reason I want to just stick with that subject for this week’s webinar and I realize we’re couple weeks behind on the webinars we’re going to get back on schedule here. Yesterday I had a wonderful opportunity to go to an NHC place in Anniston. This is a very nice assisted living facility out in Anniston.

The administrator seems very nice out there and marketing director. What they did is they put together a community outreach program where I was there. I spoke about the VA pension. We had some folks there from Wells Fargo talking about financial planning as well as long term care insurance. Then we had a realtor very good presentation about if maybe you’re going to sell your house and move into an assisted living facility, what do you do or how do you do that.

I answered some questions out there and then we’ve also received some questions from you very recently here. I’ve got those typed up here. We’ve got about 5 questions.

The first one is, “on the VA pension can I get my check direct deposited?”

Then secondly, “where does VA pension money go to? Does it go to me or to the facility?”

Third, “I heard I have to be in an assisted living facility to get the VA pension, is that right?”

Then fourth, “why does it make sense to sometimes get an accredited attorney to help me get the VA pension?”

I think what they also were saying is sometimes why does it make sense to not hire an attorney just to do it on your own. Finally, this was one directly from, probably, the last question I answered at the presentation yesterday was I was active duty from 1953 to 56 but I went to Germany not Korea. I cannot get the VA pension, right? Because that’s what the family been told.

Let’s go ahead and answer those questions. The first one is on the VA pension. If I get awarded that pension, can I get that direct deposited to me?

I should back up and let’s make sure we’re on the same page about this pension. It’s a non-service related pension so not service related means it wasn’t because I was injured or I contracted the disease. While in the military it’s just, “I meet the requirements and now I need long term care.”

What are those requirements?
1.) Military.
2.) Health.
3.) Financial.

Military is war time veteran with an honorable discharge. Second, your health. Basically that means you need help. You need help dressing, bathing, going to the bathroom, medication management or just being safe at home. Then the third one is the financial, and this is where we look at the income and the assets and we either make sure we qualify or we do things so that we can legitimately qualify.

Going back to our question. If we meet all these requirements and we get the award, can we get that direct deposit? Answer is yes. Actually the VA, I won’t say that they’ll make you, but they really, really want you to have that direct deposit so that is no problem whatsoever and that comes directly to you.

This really flows into our second question which is, “where does the VA pension money go? Does that go to me as the veteran or does it go to the facility?”

Here’s why it’s such a good question. There’s a lot of confusion between the VA pension paid in attendance and Medicaid because in a way they do the same thing. Its money from the government to help you pay for long term care.

The difference is Medicaid over here has a practical matter we’re only talking about long term care in a nursing home not assisted living. Not having sitters come to your house but in a nursing home. That money does not go to you. That money goes directly to the facility.

It’s quite natural when we finally hear about this VA pension which not very much is known about it. People have a lot of misunderstandings about it. They don’t even know it exist. You call the VA half of the time you’ll be told “We don’t have any such program. You have to be injured or contract a disease in your military service.”
This benefit nothing to do with that. You think, “Oh well it I guess it goes to the facility.” but it doesn’t. It goes to you. We’re talking about in our last question normally it gets direct deposited into your account but if you don’t do it that way then you get a check but it goes directly to you then you decide what to do with it.

The whole point of it, the purpose of it is for long term care. That could be care at home. That’s great we can stay at home. Maybe we can't do that anymore so we move down the line to assisted living. It certainly can help you there.

If you are in an assisted living that’s $4,000 a month so you’re in a nice place and your income is $3,000 a month, you’re not going to make it. You got to dip into 1000 a month into your savings. There’s benefit if you qualify and you’re a married couple it’s $2000 a month that you get.

Remember you’re at 3 but you’re spending 4 so that’s a negative 1000 but if you can get an extra 2000 now you’re positive 1000. It’s incredible benefit. At home paying for caregivers in an assisted living even in a nursing home.

Now if you’re drawing Medicaid then you lose a lot of this benefit but you may be privately paying. You may have a penalty period to pay through. All sorts of reasons why it might be coming out of your pocket. Getting that VA check can be vitally important to you.

Our third one is, “I heard I have to be in an assisted living to get the VA pension, is that true?”

Let me say this. An assisted living facility is the ideal place, the classic place where you need this one. You might be at home and maybe you’re getting care for free. If it’s a child or a grandchild caring for you, we can arrange things so that you can legitimately pay them. The VA completely allows it. When you’re in assisted living, you’re definitely paying. Think about this with assisted living.

Go back to example in our last one. We said we have $3,000 of income but we’re spending $4,000 a month at assisted living. That $4,000 when you think about it part of that is room, part of that is board. You have a place to live. You’re paying for that and you get meals. You’re paying for that but that’s all inclusive in that $4000 or $5000 whatever it may be.

If you’re living at home, you’re paying rent or mortgage. You can't deduct that as a medical expense. We have other videos where we talk about what’s called IVAP, income for VA purposes. That’s your total household income but then you subtract out unreimbursed medical expenses to get to your IVAP, income from VA purposes.

If you’re living at home you can't deduct anything for your mortgage or your rent. You can't deduct anything for your groceries, for your eating out. What if you’re in an assisted living facility, part of that $4000 is room and board. You can deduct that.
I understand why the person that wrote this question they said I heard I have to be in an assisted living facility to get the VA. I get why they said that because it’s such a natural fit for this benefit but you don’t have to be.

You can still be at home you may have a child caring for you. You can enter in what’s called a caregiver agreement. You have to be careful when you do that. You always have to look at Medicaid over here.

They have certain rules but it’s possible to qualify at home and most of our clients qualify at home but a lot of folks are in assisted living. This is perfect. We even have people in nursing homes. They’re this whole spectrum. We always want to be at home then we want to be in assisted living and then ultimately nursing home if we have no choice. It can be very beneficial there as well.

Our fourth question. Why does it make sense to sometimes get an accredited attorney to help me get the VA pension?

Let me say this. If you get any attorney, they have to be accredited. I don’t care if they’re licensed in Alabama, not licensed in Alabama. They have to be accredited or they’re breaking federal law by advising you on the VA pension. Now they may be doing that without knowing it but let’s think about this.

If you can't even advise people about this benefit unless you’re accredited. If you don’t know that as an attorney, then why would we expect that you would know how the benefit works, what you can do to qualify, what you cannot do qualify, how it interacts with Medicaid.

If you don’t have that basic level of knowledge, I don’t know how they would have the advance level of knowledge. If you’re going to get an attorney make sure they’re accredited. You can check that out on the VA website who is accredited in Alabama.

Maybe the question ought to be, do I need a lawyer? Do I not need a lawyer? When I was doing that presentation yesterday in Anniston I mentioned to you the group of folks that I’m speaking to. We set up a little video training website and specifically for the folks I was giving that training to but I’ll go ahead and mention that because it’s on my mind and I think it’s very helpful.

You’re welcome to use it if you go to There’s a welcome video. You put your information and then you get access to 4 videos where we walk you through this whole process. The final video is, what do you do now. Do you get an attorney? Do you do it on your own? Do you go to the VA? Do you have a financial adviser do this for you?

Generally the answer is if you need any help with your income maybe showing that the income meets the requirements and even more than that the assets, your net worth. If you have maybe too much in the way of assets or net worth, you really need to be meeting with the lawyer. We see financial advisers giving legal advice. Give this away or do this or do that. You just cringe when they do that because they just don’t have the knowledge. They may have the best of intentions or just a great heart but they’re telling it wrong and they also don’t understand Medicaid.

Just recently I heard somebody say “It’s illegal to give assets away. You can go to prison for giving assets away to qualify for Medicaid.” That’s absolutely false. You go to prison if you lie about giving stuff away. You can give stuff away.

You can apply for Medicaid and say to Medicaid “I gave away half a million dollars. That’s fun.” You don’t go to jail for that. You go to jail if you lie about it. There’s a lot of misunderstandings about these also. Any legal advice needs to be lawyer, needs to be a VA accredited lawyer.

Do you have time for a lawyer? No. There are people we meet with and we say “You got $3000 income and $4000 a month [to non 00:13:00] reimburse medical expenses and you had $20,000 assets, you don’t need us. You can go to a veteran service organization, American Legion VAW, whoever it may be go to your county VA officer they can help you.

My suggestion is don’t go to those folks if you have more than $80,000. If you’re needing to transfer assets, you give it to your kids, you put it in a trust, you buy a special type of annuity. What do you do? You need to come to a lawyer for that because we can look at the whole picture.

Let’s strike this one. If we have one eye on the VA, we can have another eye on Medicaid and nobody wants Medicaid. Nobody wakes up in the morning and says, “Yes I get to go to a nursing home today.” Nobody does that. The nursing homes are full of people in there who do not want to be there but they have to be there because you need skilled nursing.

We can't just say “There’s no way I’ll need Medicaid nursing home.” If we do anything for the VA, we have to look over here and say “How does this fit with Medicaid and what’s my plan to coordinate these 2 things if I have to?” That’s my suggestion for you. Again, you’re welcome to go to that and look at those videos. There’s also workbook that comes with it. A lot of materials we’ll send you on that.

Final question, "I was active duty in 1953 to 56 and went to Germany not Korea so I can't get the VA pension, right?"

There’s where a lot of misunderstanding. Go back to our 3 requirements; military, health, financial. What’s the military requirement? You have to be a war time veteran. What does that mean? It means you have an honorable discharge or a better than an dishonorable discharge. What does war time mean? It means active duty during a time of war.

To this person they said “I was in there from ‘53 to ’56.” That’s during the Korean war but they said “No I went to Germany so I wasn’t in combat. I wasn’t where the battles were being fought.” It doesn’t matter.

Active duty during a time of war. What’s a time of war? World War 2 we started off at the beginning of the war and we’ll go to the end of ‘46. Korea is about ‘50 to the first part of ‘55. What about Vietnam? ‘64 to ‘75. A little bit longer period if we were actually in country.

Here’s something that most people don’t know. We have been in a constant state of war for the longest period of time ever in our history. Twenty five years, 1990 to today the Gulf War, 25 years of being in a state of war. Anybody active duty. There’s a few requirements how long you have to be active duty. We get in those details later. Active duty World War 2, Korea, Vietnam, Gulf War doesn’t matter if your station.

Are you stationed in Anniston? Are you in Georgia? You in Arizona? Where are you? It doesn’t matter you be at the North Pole. Active duty during a time of war you qualify under that military requirement. If you ever question about your dates you can get something it’s a foreign piece of paper from the government, DD214.

If you don’t have that or maybe you’re watching this for a parent or an aunt, uncle if they don’t have it then we’ve set up a little link. It will take you directly to the page you need at the government website. It’s called Get, G-E-T my, M-Y DD so that’s D as in David, D as in David It will just take you right to that link.

You can see phone numbers, little form you can fill out or pdf you can do. You can get that and I will tell you because once you get that form it’ll say here’s when you went into the service. Here’s when you left, here’s your type of discharge that you had some very valuable to have that if you’re even remotely thinking about this benefit.

Please understand you do not have to be in combat. So many people believe that and I think well meaning, well intentioned folks at the VA tell people that and they just don’t understand. This benefit you do not have to be in combat. It’s not a combat benefit. It’s a benefit for anyone active duty during a time of war.

Hope that this webinar has been helpful to you. We appreciate your questions and you can put them as a comment below this video. You can go to Alabama Elder Lawyer to contact us. You can call us 205-879-2447 and we can give you a lot of information if you are in Alabama or you’re calling about somebody in Alabama.

You’re also welcome to go to the little website. Again we set it up for the folks in Anniston but it applies to anywhere. and get the workbook. Make sure you check your email to get the workbook and then go through those 4 videos.

I want to say there maybe 30 minutes total. I think one maybe 10 or 12 minutes maybe even 20 minutes because that’s where we’re talking about the financial requirement. Remember that’s the third requirement because there’s so much information about that.

How do you calculate income, how do you calculate assets, what counts, what doesn’t count, can you transfer, is there a penalty period, what about this change in the law that’s coming from the VA or maybe it’s coming, who knows if it’s coming, when is it coming. We’re talking about all that in those videos.

I appreciate your questions. As long as you keep sending any questions, we’ll keep doing these webinars and we’ll be happy to continue to do these. Hope you have a great weekend and I will see you next week. Okay, have a good one. Bye.

August 13, 2015

2015-08-07 Elder Law Q&A with John Watts

Welcome to our Q&A on elder law issues. The entire video is above, and the transcript is below.

I hope you enjoy!

John Watts


My name is John Watts and I want to welcome you to our question and answer session on elder law and estate planning. I’m a lawyer in Alabama. I have an office in Madison, Alabama and our main office is in Birmingham, Alabama. We represent people all over the state. We have elder law clients from the northern part of the state, southern part and really everywhere in between. Today, what we’re going to do is answer some questions we’ve received over the last couple of weeks. I realized it has been maybe a month since we last did this on elder law issues.

We’ve got a little bit of a backlog to clear through but we’ll start doing this every Friday and if you would like to ask a question, you can leave a comment below this and we’ll answer it on the next session or you can contact us through our website Alabama Elder Lawyer or you can even call us at 205-879-2447. We got about 6 questions and we’ll keep this about 30 minutes or so.

Our first question has to do with Medicaid and that is "what is the look back period?"

If you know about Medicaid then you’re familiar there’s a 5-year look back period or even if you’re not that familiar with it, you may have heard there’s something where Medicaid is going to look back in time when we applied for Medicaid.

What is that look back period?

Here’s the situation, if today is August 7, 2015, so if I applied for Medicaid today and I’m qualified for Medicaid, then they look back 5 years in time. What are they looking for over here? They’re looking for gifts. What’s a gift? A gift is where I’ve transferred something like money, a boat, property, whatever it maybe. I’ve transferred something in an exchange I’ve not received the full fair market back. If it’s a $10,000 boat and somebody pays me 2,000 for it and it really has a value of 10,000 well that’s a gift of 8,000. If I just give it away and get zero in return, that’s a $10,000 gift. It’s true with bigger numbers too.

If I have a half million dollar house and I give that to my kid and there’s certain exceptions that apply. We’re not getting all those exceptions, keep them the general, the high level of this law without getting bogged down in the details but if I give away half a million dollar house to a kid, that’s a half million dollar gift. I apply and I qualify. That’s critical. To qualify now, you got to look back 5 years, 60 months and all this time period they’re saying, “What are the gifts that you have made?”

That’s what the look back period is. I believe our next question has to do with the penalty period but that is the look back. We apply the look back 5 years, and let me just say this, 1 implication of this is if … and I use this example, say, last week. I was training the lawyers all over the State of Alabama on Medicaid. I gave this example, what if 59 months ago, my client gave away $580,000 worth of assets and she’s qualified now. I could apply right now and get her on Medicaid.

Should I do that?

If I apply right now and I’m qualified right now and I look back 60 months, what are they going to see? Right here about month 59, they’re going to see she gave away $580,000. There’s going to be a huge penalty.

To give you a real quick version of the penalty, you take whatever those gifts are, divide them by $5,800, that’s what Medicaid says is about the price of a nursing home. Then you go forward in time and that is your penalty, so 580,000 gift. Remember, I made that 59 months ago. I apply to qualify now. They’re going to penalize me 100 months into the future. It’s like 8 years. The key to understanding that look back is if you’re in a crisis situation right now and you’re trying to figure when do I apply right now?

In that situation, you would not apply right now. You would not apply the next month and go a little bit into the future so that when Medicaid looks back 5 years, they don’t see the $580,000 gift and that’s not wrong. That’s just following their rules. That’s the look back period and I hope that’s helpful to you.

Now, our next question is what is the maximum period that Medicaid can penalize us?

We’re familiar, again, if you listen to our last answer, there’s a 5-year look back period so I qualify for Medicaid. I apply for Medicaid. They look back 5 years. They total up all the gifts, divided by 5800 and the answer is the number of months going forward in time unpenalized.

The last example I used was $580,000 59 months ago. Let’s say I applied because I don’t really understand the law and I qualify. Then 580,000 divided by 5800 is 100. 100 months going forward in time. I’ve got to pay for the nursing home bill. People go, "that’s crazy!" I have a lawyer that say he can’t do that. There’s a 5-year maximum on the penalty. There’s no maximum. If you give away $5.8 million then I guess it would be, if my math is right, I got thousand months, what is that? I think that’s a lifetime. It’s a really long time regardless. There’s no maximum on the penalties so the key is in understanding the look back and understanding the penalty is controlling when do I apply for Medicaid assuming I’m qualified.

There are times when we’re qualified and we say I’m applying right now. I know a Medicaid looks back. They’ll see some gifts so they’re going to penalize me. That’s okay. I’ve taken that into account and I have a plan in place to pay for that because normally if somebody comes to us and mom or dad is already in the nursing home, if mom and dad are married, we can save usually 75, 85, maybe 90% of the assets. A single person, we can usually save about half the assets. We can definitely deal with this penalty period. Sometimes we do apply, we take the penalty. Other times we say, you know what, the penalty period would be so big,
we’re just going to continue to privately pay and then at the right time understanding the rules. When we apply and look back, we don’t see those gifts.

If Medicaid doesn’t see the gifts because they’re outside that 60-month penalty period or excuse me, 60-month, I’ll get it right, look back period then there’s no penalty. That is a real key point in understanding 60-month look back and then that be unlimited penalty period knowing when do you apply. If somebody comes to us before they’re in a crisis situation, they will say okay, here’s what we’re going to do with the assets because we know if we get in a situation where we’re in the nursing home how do we deal with that look back. How do we deal with that penalty? We have a plan in place.

Our next question is related to this. Is it illegal to transfer assets?

Now, that’s all that was said. I think what this means is in the context of Medicaid planning or VA pension planning. Is it wrong to give it away? No. It’s not wrong to give it away assuming the person giving it away has capacity, mentally they understand what they’re doing or if they don’t have capacity, somebody has a proper power attorney and they’re fulfilling that power of attorney in the correct way, then sure, you can give away assets.

If you give away assets and then you apply for Medicaid, like we talked about in the earlier answer, we apply for Medicaid. We’re qualified. They’re going to look back 5 years and say did you give anything away. If you did or if your parent or your brother, whoever we’re talking about, you got to say, yes. Now, it’s illegal to lie about it. That’s fraud but if you tell the truth and they say, “All right. Look back 60 months, did you give anything away?” if the answer is yes, you say, “Yes, I did. Here’s exactly what I give away.” If the answer is no, I did not give away anything in the last 60 months then you answer that no. That’s not illegal.

Now, there can be penalties. Right now as I’m recording this August of 2015, the VA does not have a penalty or a look back period but they’re trying to establish one. I think they’re doing it really outside of their power and authority but the word on the street is October 1st. They’ll start this and they’re going to do a 3-year look back period and then there will be a penalty going forward. We won’t get into all that right now but with Medicaid, you look back. There’s a penalty. There might be penalties involved just in the sense that it says okay, even though you qualify we’re not going to give you Medicaid benefits or not give you VA pension benefits because you gave stuff away but it’s not illegal to do that.

Our next question and I think I jumped the gun a little bit here is "what is the change of VA pension is taking about making on look back."

Again, the VA has got say, “All right, if you qualify we’re going to a look back 3 years and did you give anything away.” Their rules right now are a little perplexing what they’re proposing because they match Medicaid but then they don’t and it seems to be a distaste for annuities and we use annuities in Medicaid planning. That’s long been allowed certain types of annuities to be used. It’s a little unclear what the VA is trying to do other than they don’t want people giving away assets and if congress passes that law, that’s fine.

Congress has not passed that law so the VA is trying to do it on their own but it will be if they do a 3-year look back period and then they’ll take, total up those assets that you’ve given away and again it’s a little confusing. It’s at the full amount of the assets or a partial amount. It may be a partial amount based on your total amount of assets that you have. Again, a lot of uncertainty about what the VA is trying to do but then the penalty period going forward us basically taking your pension right.

For a married couple, this could be about $25,000 a year. For a widow, it be about $13,000 even a single veteran, sometimes around 20,000 and that may use that number to give the number of years of penalty. We’ll keep an eye on that and I expect there to be a flurry of litigation about these changes coming to the VA pension. The bottom line is if you think you may qualify or a family member may qualify for the VA pension, probably smart to get on that right away because after October, the VA at least claims that they’re going to be enforcing and now creating this 3-year look back period.

We don’t know if you apply before October but if you’re not fully approved by the time October hits is the VA going to track and go back in time. Is it just a lot of uncertainty, a lot of language that I don’t think they intentionally did it this way but it’s very fussy language, very vague, ambiguous so we’re not sure what the VA is trying to do with that but we’ll definitely update you as we know more information.

Our next question is will a revocable living trust protect my assets?

I think they really mean their parent’s assets from Medicaid. Let’s say mom and dad, they put assets in to a revocable living trust and then later they need Medicaid, those Medicaid count those assets.

I have this very trustee little treasure chest here. This is a trust. Say mom or dad have cash, investments, they put in a revocable living trust.

First of all, what is a revocable living trust?

That is where the lid is open. You put money in and later I go I’m taking it back out. See, it’s still mine. I can revoke it. I can make this whole thing just go away anytime I want.

Does Medicaid count these assets? Does the VA pension, VA aid and attendance do they count stuff that’s in a revocable living trust?

Absolutely, because the rule is if I can reach in there and grab it then the VA can grab it, Medicaid can grab it.

Medicaid and VA would say, “Hey, those are your assets. Use them.” It definitely counts. We use something called an irrevocable trust or Medicaid planning, VA planning because once I put that in there, and then I apply for Medicaid or VA, Medicaid or VA say, “That’s still your asset.” I go, “No. Look, I can’t open it.” It has to be set up the right way. Follow all the rules of the proper type of trust but it can be done where that is put into an irrevocable trust and then it’s protected. Now, go back to our earlier question. If I put money into an irrevocable trust, I put my residence, beach house, lake house into a revocable trust. That’s still mine. It’s irrevocable. Now, that’s a gift because the trust didn’t pay me for that.

It’s a gift. I have to keep that in mind when I’m looking at, remember the 5-year look back period for Medicaid. Hopefully that answers the question on how does Medicaid, how does VA deal with a revocable living trust.

Our last question has to do also with revocable living trust, kind of a state planning in general, what do I think about? I know I want to set up a trust. What kinds of things should cross my mind?

I just met with somebody, I don't know 2 hours ago maybe and we talked about this. Pretty sizeable amount of assets and the question is what do you want to do with your stuff?

If you’re disabled, if you pass away, one of your spouse’s passes away. What if you pass away and your spouse is still alive, what do you want to happen to your stuff? A lot of times when we ask that question, it’s like, “I want to get to my relatives. Okay, that’s good. Which relatives? We need to know. What percentage? Is it split equally, not split equally? What is it? Do you want them to get it immediately? I die and immediately that money goes to them.” That can be good or it could be bad depending on situations. What about if I’m married and I die, does all my stuff go to my wife and she owns it outright? A lot of people say, “Yeah, that’s great,” and that could be perfectly fine.

What if she remarries and then she sets up a will or trust that says everything goes to my new husband then she dies, what happens to my kids? The new husband may not want to give that money to my kids. Some maybe will say, “When I die, some I want to go to my wife, some I want to go to my kids.” You can do that. There’s no right or wrong answer. You just have to decide what’s best for you and think about the people you’re leaving this money to can they handle an inheritance? Are they in a stable marriage? Are they in a stable business, stable financial condition? Do you want it to be in a trust?" For example, it says, “Okay. When I die then this money immediately goes to a certain beneficiary, a child, a spouse, whoever,” or maybe say, “You know what, it’s going to say on this trust and we may even make it to where that child cannot get to that money instead a trustee, a person with a key has to give it to them to protect the money from creditors, divorces, bankruptcy, lawsuits, whoever it maybe.” The things that think about are what do you want to happen to your stuff? When do you want it to happen? There’s a tension between immediate access to that money, that inheritance and protection of that money, that inheritance.

If we say, “I want my child to be able to get to it, just immediately, at the funeral. They can grab them like, “Okay. That certainly makes it easy,” but it also means it’s easy to blow that money. It’s easy to lose that money. It’s easy to be sued or divorced or whatever it may be. They say, “I want it fully protected. I don’t want any spouse, ex-spouse, lawsuit, business partner to really get to that money.” Okay. That’s going to be hard for the child to get to it because whatever the child can reach and grab their creditors and predators can reach and grab.

Again, no right or wrong answer. You just have to think about these things and this is why sometimes people say what about LegalZoom or, I don't know what the other one, Rocket Lawyer or something like that or going to Office Depot and get a formed will. Will that work? A lot of times it will. People say it’s, I don't know, 200 bucks on LegalZoom. How much do you charge for a trust or a will? I don’t sell a will. I don’t sell a trust. What we sell is our process of helping you think through what do you want with your stuff?

I mean if you say, “I know exactly what I want and I want everything to be left to my wife and then once she dies, I want everything to go to my kids. Can you get that from LegalZoom?" Sure. Now, you’re not getting any counseling. You’re not getting anybody saying you do need to consider what if a child is disabled. What if your wife remarries? What do you want to happen to the money? All those things. When people hire a lawyer, that’s to get that counseling so you go here’s where I am, here’s where I want to get to. It looks like this is the quickest way but sometimes you might need to go like this because that’s actually the better way.

Those are just some things that they think about when you’re talking about estate planning in general. Now, my focus in this area of the law is really on elder laws. Most of our clients are coming to us. There’s been a crisis. Somebody is in assisted living and a nursing home. What do we do now? In the context of doing all that sort of stuff, we do wills, power of attorney, revocable living trust. It’s not pour focus but in order to do elder law which is up here, you’ve got to understand the more basic estate planning. I hope that’s helpful.

I think that is all the questions that we have. At least that we have time for this week.
Feel free to get in touch with us, 205-879-2447. We’re at or you can just leave a comment below this video about things we talked about or maybe a question you’d like to see us answer. We’ll be glad to do that. You can also find us on Facebook at Alabama Consumer Protection Attorneys and we have a lot of people that comment on there and post on there. You can also put a question on there. I look forward to chatting with you next week and thanks for watching. Okay. Have a great day. Bye-bye.

May 15, 2015

2015-05-15 Q&A webinar with financial protection attorney John G. Watts

This is the first one of our weekly question and answer webinars.

Here's the transcription with some of my sloppy words cleaned up. :)

Well, hello and welcome to our first question and answer webinar. We're going to do these about every Friday or so. The purpose of these webinars will be so that you can ask questions. If you're on this live, of course, you can ask them. If you are not live on this or you want to submit questions at a time that's convenient to you, you can always email me: We have a number of those questions that have been submitted already. Probably, unless we have somebody that has a question right now, we'll just go through these previous questions.

The idea is you can ask about consumer protection issues. That can be things like credit reports, debt collectors, mortgages, foreclosures, being sued by a debt collector, also, elder law or estate planning issues. What's a will? What's a trust? What's a special needs trust? How do I qualify for Medicaid in Alabama. Things of that nature. We'll go ahead and get started. I'm not sure exactly how long these will last. Maybe 30 minutes, maybe longer. We'll just start going through some questions.

First question I have is, somebody had written in, "What's the process of a short sale?" This is when you're facing a foreclosure and you're wanting to avoid that foreclosure. There's something called a "short sale." A short sale is where you agree with the bank to sell your house for less than what you owe. Let's say you owe $200,000, you get an offer for $180,000.

That's $20,000 short. You either have to come to the closing table with 20 grand or you get your mortgage company to agree to allow this short sale to occur.
The advantage of this is it prevents a foreclosure because you've actually sold your house.

The downside is, you have to get your mortgage company to agree to do this and sometimes that's a little difficult to do. You also have to wonder, are they going to come after me for that deficiency or that shortness, if you will? That 20,000 in my example. If they will do that, then you've got to decide, is this worth it?

A lot of times, you can get them to agree to waive that or just not come after you for that. You also need know, how will this be reflected on your credit report? A number of issues to look at but a short sale can be a very valuable alternative to foreclosure.

This is what, broadly speaking, is called, "loss-mitigation." That can be a loan modification, a deed in lieu of foreclosure, or a short sale. There's other things but for our purposes, just talking about a short sale right now.

Typically, the process will be that you have to try to sell your house with a licensed realtor and then when that's not successful, then they'll let you lower the price so that it'll be a short sale. Then, once you get an offer, then you've got to get the servicer to approve it and oftentimes, the investor. That could be Freddie Mac, Fannie Mae, it could be some trust that's out there. You've got to get those guys to approve it and then, ultimately, there's paperwork. A lot involved in it, but if you are facing a foreclosure and you're trying to avoid it, then a short sale's certainly an option to look into.

Next question we have is: “Can a debt collector be accountable for causing your credit score to drop by reporting inaccurate information?” The answer to that is absolutely.

There's really two laws at play. One is the Fair Debt Collection Practices Act and the other is Fair Credit Reporting Act. If a debt collector is reporting false information and they know it or they should know it, that's going to violate the FDCPA (Fair Debt Collection Practices Act).

This is assuming the debt collector is subject to that law. It's a consumer debt, so not a business type debt. You're dealing with an actual debt collector, so not the original creditor. Then they violate the law, which if they're reporting false information and they know it or they should know it, then that's going to be a violation of the law.

Then, there's also this thing called the Fair Credit Reporting Act (FCRA). You get your credit report, you look at it. You say, "Wait a minute, I don't owe this debt collector $5,000. I settled with them two years ago for $3,000. I own them zero, but they're reporting I owe two or maybe they're reporting I owe the whole $5,000.”
That's going to be false credit reporting. It violates the Fair Debt Collection Practices Act, but under the Fair Credit Reporting Act, you can dispute that through the credit bureaus. You give them the proper proof and they have an obligation to investigate. That includes going to the debt collector, if they need to.

You may send them enough information that the credit bureau says, "We're fine. We don't have to talk to the debt collector." If they do talk to the debt collector and the debt collector says, "Oh no, keep that on their credit report," then that's a violation of the Fair Credit Reporting Act. If you've given enough information to the credit bureau and they keep it, then that will violate the FCRA on behalf of the credit bureau as well. Those are places like Equifax, Experian, and TransUnion. If there is a violation of the law, typically the best approach is to sue in federal court and you get money damages if you're successful. That tends to prompt these guys quickly to fix your credit when they realize that you've sued them in federal court.

Our next question is, “Will an inheritance to my disabled daughter on SSI and Medicaid jeopardize her benefits?” What this is talking about is, let's say your daughter has a disability and she's drawing SSI, not Social Security Disability Income but the Supplemental Security Income. That is what is called a means-based or means-tested benefit. You have to meet certain requirements on income and assets to qualify. Same thing with Medicaid.

What do you do though if you're daughter is set to receive an inheritance? Maybe a grandparent, an aunt, and uncle, somebody is leaving money to your daughter who's on SSI and on Medicaid, is that going to jeopardize her benefits?

The answer is, probably it will. Normally, on those benefits, your daughter can only have $2,000 in assets. Unless it's a very small inheritance, that's going to push her over that $2,000 limit. That's going to be a problem as far as staying qualified for SSI, staying qualified for Medicaid. That might be incredibly important to keep those benefits. So, what do we do?

Typically, what we do is we set up what's called, "The Special Needs Trust." Imagine a box and we put that inheritance into the box. That way, it's not considered your daughter's money. It's owned by that Special Needs Trust or that box. There are very specific rules for how we reach into that box and pull out money to benefit your daughter. Normally, we cannot replace benefits that are already provided by SSI or Medicaid, but we can do things to supplement. For example, maybe eyeglasses are not covered or maybe certain dental work is not covered by these government benefits. We may be able to then, reach into that box, pull out money to take care of that. Again, very specific rules on this but just to answer this, hopefully quickly here, yes, an inheritance or other money going to your daughter who's on SSI, Medicaid can very well jeopardize those benefits. You want to sit down with a lawyer. Find out, does it make sense to do a Special Needs Trust? If it does, how do we do that process?

Our next question is related to this. “Will an inheritance to someone on SSDI, that's the Social Security Disability Income, and Medicare, so not Medicaid, but Medicare, will that jeopardize their benefits?” The answer to that is typically no.

If we have someone that's receiving Social Security Disability Income. They've worked, they've now become disabled and they're getting this money in from Social Security, then that is not means-based or means-tested. It's just a matter of, did you have enough work quarters or credits or whatever Social Security calls it? Do you meet the definition of disability? Okay, you get this money.
Whether you get an inheritance or not, doesn't have anything to do with that.

This question is on Medicare, which again, is typically not means-tested. You qualify for Medicare based on your age or certain health issues and doesn't really have anything to do with the amount of money that you make or the amount of assets that you have.

Another question we have is, “What is the change that the VA is trying to make on the VA pension or what is know as Aid & Attendance?”

This is a benefit that, for a married veteran, what's called a war-time veteran, can mean up to $25,000 a year tax free. You use that money to pay for long-term care. That can be care at home, in an assisted living facility, or even in a nursing home. Right now, there is no what's called, "Look-Back Period," where if we apply right now, does the VA look back in time and say, "Did you give away any assets?" Right now, there is no such period, but the VA is trying to create that look-back period.

Earlier this year, they said, "This is what we're doing. We're changing the rules." Whether they can do that or not is for a different video. They gave an open period until March to comment on that. In our experience, even though it's now May, we're not seeing them apply these rules. I think that's because there are so many problems with these rules where, I think the VA maybe didn't think it through clearly what they were saying.

I'll give you just one example. They say, "If you give anything to a trust, then we're going to penalize you." We apply now, we look back in time and their proposal is three years. If we gave anything away, they're going to penalize us or punish us going forward. They say, "If you give anything away to a trust, we'll penalize you."

Very simple example. Say a veteran, married veteran, they meet the military requirements, the disability requirements, the financial requirements, income and assets, they have $40,000 in assets. Two and a half years ago, they set up for estate planning purposes, a Revocable Living Trust. That's a trust, a box, we put stuff in. It's still considered ours for all intents and purposes. A veteran does that, they're in perfect health, and now they've had a stroke and they need this VA pension. The VA would say, "Aha, you gave away assets. That's a problem. We're going to penalize you." Well, that still would be considered our assets and maybe it's a house we put in plus $40,000. Normally, the house doesn't count as an asset but now, since we transferred into this Revocable Living Trust which really does nothing in terms of ownership, the VA's going to say, "Now we're going to penalize you."

That just wasn't well-thought out. That's not what the VA means, but that's what they wrote. But the VA is trying to change the rules. Anyway, here's the bottom line. If you think you might qualify for this benefit, you need to get with a lawyer right away because you may need to take action now before the new Look-Back Period and other changes to the law come into play.

On any of these, if we can help you, if you live in Alabama or this is about a family member in Alabama, you can always reach us at 205-879-2447 or you can go to That's our website for consumer issues. Or and that's estate planning or elder law issues.

I think we've got time for maybe one more question. This has to do with being sued by a debt collector. Our courts, particularly what's called Small Claims & District Court, they are just dominated by these lawsuits. Some of these debt buyers, debt collectors file a hundred lawsuits in Alabama a week. Just one debt collector files a hundred a week. Another debt collector files a hundred a week.

The question is, “What should I do when a debt collector sues me and they leave the summons, that's the legal document that says, ‘All right, you've been sued and here's your time period to respond, Small Claims Court, 14 days, District Court, 14 days, Circuit Court, 30 days.’ The question is, if I've been sued and I get the summons, but they leave it on my door or they just throw it on my porch, throw it in my yard, am I considered served?”

I'll tell you this, I think from a technical, legal standpoint, if they simply leave it on your porch, then I don't think that's being served. What the rules talk about is leaving it with a person who lives in your house, an adult who lives in your house. That could be a spouse, a child, a roommate, as long as they live in your house. The rules don't talk about throwing it in the bushes or taping it to your door.

I'll give you the practical side. If you know you've been sued, then there's really no benefit in my opinion to just waiting around saying, "Well, you technically didn't serve me. I'm just going to wait until you serve me." My approach is to say, "When these debt collectors sue us, instead of backing up and we're scared and we're going to wait -- No, let's go forward instead. Let's charge these guys. Let's get in there, let's respond to the lawsuit. Let's get a trial date and let's win the case because the sooner we win the case, the sooner we have options against these debt collectors. “

Right now, as I'm recording this, it's May 15 and we have, I think ten Federal Court lawsuits against Midland Funding (a prominent debt buyer) that are pending, active cases right now. I've got another one we're filing. We've got, I think two Federal Court lawsuits against Asset Acceptance and then we have some other cases out there. These all arise out of when consumers were sued by Midland, sued by Asset Acceptance, Portfolio, whoever it may be and the consumer won that case. We want to get to that trial to win that case.

You do have five options when you're sued by a debt collector:
**fight the lawsuit on your own,
**settle the lawsuit on your own,
**hire a lawyer to fight the lawsuit,
**hire a lawyer to settle the lawsuit.

We have an entire video webinar on these 5 options when sued. I think it's like an hour and twenty minutes long. We go over these options. Then we answer a bunch of questions that come up over and over and over, so we went ahead and put those in there.

Just in terms of service of process, if it's just stuck on your door, thrown in the bushes, thrown in the front yard, the front porch and we see that all the time, that's normally not considered good service. I would just be very careful about saying, "What, hey, you didn't serve me. I'm not going to even pay attention to this," because the court might mistakenly believe that you've been served and then those days start counting. When you run out of days, 14 for Small Claims or District Court, 30 for Circuit Court, then the debt collector says, "Hey Judge, we served him. He didn't answer. Give us a default judgment." That's signed and now you have a judgment against you.

If you weren't properly served, you can undo that and we have had situations where clients have hire us and they find out they had a judgment from 14, 15 years ago and we've been able to get those set aside because if you're not properly served, the lawsuit's no good against you. You can do that, but there's expense in it, there's time and the judge may say, "No." My thought is, if you know you've been sued, then go ahead and figure out your options.

We'll make this the last question for today.

Again, if you would like to get in touch with us, my name is John Watts. You can call my office, 205-879-2447. Or you can go to or

If you call the office, typically you want to ask for Carolyn and tell her what's happening and what your situation is. Then, she'll either get back with me and see what we can do or if it's certain types of cases, and she knows, she's been working with us a long time, when to go ahead and set up an appointment. It can be in person, it can be by phone, it can be by video, whatever is most convenient. We'll be happy to help you anyway we can.

I appreciate you watching this and if you have questions, we'll do this again next Friday and we'll get the exact time that we're going to do this and send that out to you. If you're interested, just contact us through one of our websites or you can email me Thanks a lot. Have a great day. Bye-bye.


John G. Watts

Watts & Herring, LLC
Birmingham and Madison Alabama offices (we represent folks all over Alabama)

July 4, 2013

New Articles on FDCPA and VA Pension/Medicaid

We have several new articles we wanted to share with you:

*What is a technical violation of the FDCPA against an abusive debt collector? Hint: any violation that applies to someone else -- or at least that is what the defense lawyers for debt collectors believe. :)

*Can you still recover mental anguish or emotional distress damages from an abusive debt collector even if you have previously suffered from depression or anxiety? The answer is yes -- it all depends on whether you were harmed by the collector. Where you "start out" at is simply that -- we look to see if wherever you were before you were abused by the collector is different than where you were after you were abused. If it harmed you, then you should be able to recover money damages.

*What if you plan to qualify for (and do qualify for) VA pension benefits but then you need to go into a nursing home -- how do you pay for the nursing home? We discuss several options you have to take care of this situation -- it is never good to have to go in a nursing home but you do have options.

*Why would you ever NOT apply for Alabama Medicaid benefits for your parent if they have to go in a nursing home? Sometimes waiting, and not applying, can save your family tens of thousands or hundreds of thousands of dollars.

*Can you, as a veteran, get both service related benefits (disability) and non service related benefits (pension) at the same time? No but there is a way to use both of these benefits -- if you qualify -- to put yourself in the best position.

*Surviving spouses of veterans (widows or widowers) are eligible for the VA Pension even if their veteran spouse did not apply for or did not receive the benefits. This is a common mis-understanding that keeps many eligible surviving spouses from receiving these important benefits -- benefits that can be over $1100 a month tax free.

We hope you enjoy these articles and also be sure and check out two additional resources we have:

First, our YouTube channel which has, as of this date, over 300 videos covering consumer litigation, personal injury, and elder law.

Finally, you are always welcome to join our Facebook page -- Alabama Consumer Protection Lawyers -- as we share many articles and have great discussions about consumer issues on this page. As an extra bonus -- our twitter feed has lots of useful links as well.

February 17, 2013

Two New Articles: Collection Agencies and VA Benefits

We have two new articles that might be of interest to you.

First, we address the common question of can a collection agency actually sue me in Alabama?

Second, we try to break down the somewhat convoluted way the VA looks at income to see if you qualify, as a war time veteran 65 or older, for the benefit known as Aid and Attendance.

Finally, we conducted our first webinar on the "4 Options You Must Know About When Sued By A Debt Collector In Alabama" -- we had great attendance and participation by all who attended this. If you live in Alabama and you are interested in receiving this webinar (on a DVD) as well as our other materials related to debt collection lawsuits, feel free to click here and you can sign up to receive these items at no charge.

January 25, 2013

Two New Articles on VA Aid & Attendance

On our newly launched website Alabama Elder Lawyer, we have posted two new articles:

VA Aid and Attendance: What is this Pension Benefit? In this we give an overview of this remarkable VA benefit that can provide over $2000 a month to wartime veterans (no need to be in combat).

Our other article relates to the idea that some feel it is wrong to take steps to qualify: VA Aid and Attendance: Is It Wrong To Qualify For This Government Benefit? Think of this as taking tax deductions -- as long as you stay within the rules, it is allowable to reduce your income by claiming church contributions or mortgage interest, etc.

We hope these are helpful and we'll try to update every Friday on new elder law articles.

Best wishes

John Watts
Stan Herring

January 22, 2013

Alabama Elder Law For Dementia Patients

There is a good blog post by Nolan Stewart PC related to elder law issues for folks with dementia that we suggest you read.

In this post there are references to both the medical issues that arise (i.e. needing health care proxies, etc) and issues related to money (how to pay for long term care).

When we think about a loved one needing care who has dementia, these two issues are front and center.

How do we provide the care needed when our loved one can't make decisions anymore? Do we have the legal right to get them the care they need? If we haven't planned this out ahead of time, how much money and time will it take to get a court to give us this power?

And beyond having the legal right to make the decisions, can we afford to get our loved one the care they need? If they are in a nursing home, we are looking at $5000 a month. Home health can be just as much based upon the level needed. So if we don't have this ability, we may need to look at Medicaid to pick up the costs of nursing home care or if you qualify for VA Pension (Aid and Attendance) then this can be useful in paying for long term care.

Here's the conclusion -- it will always be easier and cheaper and more effective if we do the planning on the front end rather than waiting for a crisis to hit. What's the old saying? "An ounce of prevention is worth a pound of cure?"

If you have questions about elder law issues -- powers of attorney, planning for medicaid, etc. -- then it will be helpful to get with an elder law lawyer sooner rather than later.

If we can help, feel free to contact us at 205-879-2447 or you can go to our website Alabama Elder Lawyer to contact us. Our site is still under construction but we hope you will find it helpful for general estate planning issues for seniors, qualifying for Alabama Medicaid to pay for nursing home care, and also qualifying for VA Pension or Aid and Attendance benefits.

Update -- I noticed an article from my friends at Bailey & Holliman that hits a similar theme in more detail about some of the tools and options available -- take a look at this as it is worth your time.

January 12, 2013

VA Benefits -- Stats from VA on Alabama

You can read interesting information from the VA about the number of Alabama veterans who receive various types of benefits, including pension (Aid and Attendance) and compensation (service related).

Here are a few hilights:

There are 409,997 veterans in Alabama.
9,314 receive pensions and 68,468 receive disability compensation payments.

By all estimates, the number of Alabama veterans who are eligible for VA compensation (service related disability) greatly exceeds the number who actually receive it.

The same is true for Alabama veterans 65 or older who qualify for the monthly VA Pension or "Aid and Attendance" benefits but who are not receiving it. This benefit can exceed $2000 a month.

If you live in Alabama and have questions about this benefit, please feel free to get with us by calling us at 205-879-2447.

November 26, 2012

VA Pension: You Don't Have To Retire From Military To Qualify!

We have been talking for some time now about the wonderful benefits that can go to veterans and their surviving spouses -- it is called Aid and Attendance or the VA Pension. But the name "Pension" can make you think it is only for veterans who retired from the military.

This is not true.

As long as you qualify you are entitled to it -- and retiring from the military is not a requirement.

So check out your options and see if this is something that can help you or your family members who might qualify.

If you have questions about the VA Pension/Aid & Attendance program, and you live in Alabama, give us a call at 205-879-2447 or contact us through our webform here.

November 25, 2012

VA Pension: Your House Normally Is Not An Asset When Looking To Qualify

To qualify for VA Pension (Aid and Attendance), you must meet an asset limitation test.

But normally your home does not count as an asset for VA purposes so this can be very helpful in qualifying for the VA Pension.

If you have questions about the VA Pension/Aid & Attendance program, and you live in Alabama, give us a call at 205-879-2447 or contact us through our webform here.

November 23, 2012

VA Pension: No One Can Charge You To Fill Out Application

If you are a veteran (or surviving spouse of a veteran) and you are wondering if you qualify for the VA Pension (Aid and Attendance) benefits, it is good advice to have some one help you fill out the application.

Well, how much does that cost?


No one is allowed to charge you to fill out the application.

If someone does try and charge you, ask them to explain why you are being charged to fill out the application.

If you have questions about the VA Pension/Aid & Attendance program, and you live in Alabama, give us a call at 205-879-2447 or contact us through our webform here.

November 22, 2012

Veteran Benefits -- PTSD and mTBI Studies to Help Veterans

The VA recognizes that PTSD (Post Traumatic Stress Disorder) and mTBI (Mild Traumatic Brain Injuries) are very serious problems affecting a high percentage of Gulf War Veterans so the VA is making efforts to find solutions to this problem.

According to the VA press release:

"Traumatic brain injury has been identified as the signature injury of the Iraq and Afghanistan conflicts, and ensuring the best possible care for those affected service members is a high priority," said Dr. Joel Kupersmith, Chief Research and Development Officer, Department of Veterans Affairs. "Likewise, PTSD is an ongoing concern for our Veterans, whether they experience it while serving in the military or many years later. Defining and developing potential treatments is critical to the health of our Veterans."

It is important for any veteran, particularly Gulf War veterans, to find out whether they have received the compensation and benefits they are entitled to receive.

If you live in Alabama and want to discuss various programs and options that are available to veterans, please feel free to call us at 205-879-2447 or you can contact us through our main website while we build a special veteran website.

November 9, 2012

Veteran Pension -- "Wartime Veteran" -- What it Means

On our main website we have a new article discussing one of the requirements to receive the Veteran Pension -- Aid and Attendance -- also called "non service related disability" as the veteran does not need to have been injured while in the service. The requirement we focus on this new article is "What does wartime veteran mean?"

We discuss the dates for World War II, the Korean War, and the Vietnam War.

We also stress that being a "war time" veteran does NOT require actually being in combat or even in the part of the world where combat occurred. It just means being a veteran who served in the armed forces (active duty) during a time of war.

If you live in Alabama and you have questions about this please pick up the phone and call our office at 205-879-2447 or you can easily fill out our contact form on our website and just let us know what your question is about the VA Pension.

October 22, 2012

Veteran Benefits -- Why Is It Called "Aid and Attendance" Benefits?

Veteran Pension is often called "Aid and Attendance" because the "base level" pension can be enhanced if the veteran (or surviving spouse) is in need of help with the activities of daily living. If help is needed with the activities of daily living (feeding, dressing, bathing, driving, etc) then often the extra money from aid and attendance is an option.

Many, if not most, of the veterans who qualify for the VA pension also qualify for the aid and attendance so it is commonly just referred to as "aid and attendance."

The additional money is significant -- a married veteran who qualifies for the pension and aid and attendance can receive just slightly more than $2000 a month in tax free benefits.

Do keep in mind that in order to get the aid and attendance you must also qualify for the basic pension.

You need to be 65 or older.

Wartime veteran (not combat zone).

Honorable discharge.

90 days of active duty with one day during a time of war.

Or you can be the surviving spouse of a wartime veteran.

There are asset limitations but even if you are over this limit, there are legal ways to reduce the assets that are countable by the VA and there are many assets that are not included -- for example the VA does not count your house even if it is paid for.

There are income requirements but keep in mind that you take the income minus your unreimbursed medical expenses to reach the IVAP (income for VA purposes). There are also legal planning steps that can be taken to get the income to a level that is acceptable to the VA so you qualify for this important benefit.

If you live in Alabama and have questions about this benefit for you or your spouse or your parents, please let us know by calling us at 205-879-2447 or you can fill out a contact form on our Alabama Consumer site. Do note we are creating a separate site just for this area of the law in Alabama but it is not up and running yet so feel free to give us a call at 205-879-2447.

October 21, 2012

Veteran Benefits -- Three Common Myths About Pension Eligibility

Veteran Pension (Aid & Attendance) -- which is a wonderful benefit of up to $2000 per month -- is used by only a small percentage of those who are eligible. There are a number of reasons for this but we want to look at just three of the common myths that discourage people from even applying for this benefit that they have earned.

The Benefits Are Only For Service Related Disabilities
There are benefits for service related disabilities. But the "Pension" benefits are for NON-service related disabilities, including simply be 66 years old or older.

Now, if you are "homebound" or need what is known as "aid and attendance" to help you with daily living activities, then your benefits will likely increase.

The Pension Benefits Are Only For Those Who Retired From The Military
The word "Pension" can fool us into thinking this is for "retirees" of the military. That is not true at all.

You may have only served a short time in the military and left when you were in your early twenties. It doesn't matter.

This "Pension" benefit is to help veterans (who qualify) who have some type of disability (non service related) or who are over 65.

The Benefits Are Only For Those Veterans Who Have Been In Combat
Sometimes the benefit is known as being for "War-time veterans" which is true but somewhat misleading.

You do have to have been on active duty for at least one day during a war time as defined by the VA.

But this does not mean you had to be in a combat zone -- you can be active duty and be stationed here in the US or at a military base in an allied country. While those who faced "hostile fire" deserve our admiration, this is not a requirement to be considered a "war-time veteran" for purposes of this important benefit.

These three myths, and others that we will address, are not true and prevent many veterans (and their families) from having the options and freedom to live their lives where (at home for example) and how (independently) that they choose.

Rather than assuming the myths you read about or have heard about are true, we suggest you find out (at no charge) what your options are.

If you live in Alabama and have questions about this benefit for you or your spouse or your parents, please let us know by calling us at 205-879-2447 or you can fill out a contact form on our Alabama Consumer site. Do note we are creating a separate web site just for this area of the law in Alabama but it is not up and running yet so feel free to give us a call at 205-879-2447.

October 5, 2012

Veteran Benefits -- Burn Pits are New Agent Orange?

Vietnam veterans are still struggling with the impact of exposure to Agent Orange and can receive compensation (sometimes a high amount) for various health problems caused by Agent Orange exposure.

There is a fascinating post by Denise Williams entitled "Red Fridays -- Burn Pits, the New Agent Orange" that we recommend you read.

This discusses a common practice in the past number of years in the Gulf War/War on Terror that may account for the high number of sometimes baffling diseases affecting our veterans who have returned from Iraq and Afghanistan.

In the instance of medical waste, at least at the joint Camp Leatherneck/Camp Bastion, there are incinerators but they are used only for operating room waste, according to a letter written by an Army captain to Military Times in June of this year. The captain states that all other waste, “including bloody bandages, medical supply waste and needles, were thrown into a burn pit less than 100 yards from (her) quarters.”

This is not only current common practice on bases all over Afghanistan, just as it was in Iraq, it is standard operating procedure. “Anything that can be moved into a Burn Pit is moved burned. If it doesn’t want to burn, we pour something on it, like jet fuel or anything we can get our hands on to make it burn” reported one soldier who served both in Iraq and Afghanistan. The thinking is, he explained, it is better than burying it, and a whole lot cheaper than trucking it out.

This is something to keep an eye out for and to report to the Veterans Administration and Department of Defense as soon as you have any concern about your exposure to this practice.

We'll update this as we learn more about it and the response of the VA and DOD.

September 24, 2012

VA Pension -- "Asset Recovery" Differences in VA Pension and Medicaid

Asset recovery is where Medicaid will seek to recover benefits paid on your behalf by looking for assets that you own, such as your home.

There is no asset recovery with the VA Pension benefits. Remember VA Pension benefits are for those qualifying veterans who served at least one day somewhere in the world during a time of war.

The exception to the "no asset recovery" is if you become ineligible during the year and still receive benefits or you fail to file a required form once a year -- EVR. Eligibility verification report. If you don't file this, the VA will act quickly to "get its money back" but as long as you follow the rules, there is no asset recovery.

If you live in Alabama and have questions about this benefit for you or your spouse or your parents, please let us know by calling us at 205-879-2447 or you can fill out a contact form on our Alabama Consumer site. Do note we are creating a separate site just for this area of the law in Alabama but it is not up and running yet so feel free to give us a call at 205-879-2447.

September 23, 2012

Veteran Pension -- Differences In "Look Back Period" For VA and Medicaid

A "look back" period is where a government program or benefit looks back five years to see if you gave away any assets or money. If you did, and you are now seeking this government benefit, you may be ineligible or face a penalty.

Medicaid has this 5 year look back period which is a very serious matter.

The VA has no look back period. There are always rumblings that one will be established but as of right now there is no such period.

This allows a veteran or surviving spouse who might not otherwise qualify under the asset or income requirements for the VA pension to do some VA planning so as to qualify. Because the VA looks at your assets on the day you apply (and you have to update every year) so if you are able to legally transfer assets to a trust or to an annuity, this may allow you to qualify for VA benefits.

Of course there are decisions to be made on how to account for the differences between medicaid and VA pension benefits (also called aid and attendance) and this is where a lawyer can be very helpful to advise you.

If you live in Alabama and have questions about this benefit for you or your spouse or your parents, please let us know by calling us at 205-879-2447 or you can fill out a contact form on our Alabama Consumer site. Do note we are creating a separate site just for this area of the law in Alabama but it is not up and running yet so feel free to give us a call at 205-879-2447.

September 22, 2012

Veteran Pension -- Differences In VA and Medicaid Medical Care

One difference in the VA Pension (or aid and attendance) and Alabama Medicaid is in where the money (the benefits) can be spent or used.

With Alabama Medicaid, the money can only go towards care in medicaid eligible facilities. The money is paid directly to the facility by Medicaid. We are talking about nursing homes when we speak of long term care under Alabama Medicaid.

With the VA pension benefits for wartime veterans (or surviving spouses) who are either over 65 or 100% disabled (non service related), the benefits can be used anywhere. Any assisted living facility, home health, etc.

Medicaid looks at the need and says "As long as you get treatment here, we will pay."

VA looks at the need and says, "OK you are entitled to this money per month to satisfy that need."

If you live in Alabama and have questions about this benefit for you or your spouse or your parents, please let us know by calling us at 205-879-2447 or you can visit our Alabama Elder Lawyer website.

September 20, 2012

Veteran Pension -- Allows Veterans To Receive The Care They Need

Often veterans in assisted living facilities look at their money and decide to "skimp" on the true care they need. Assisted living facilities will tell veterans and their families "We need to get your father or mother more care" but since the money is not there, or it is dwindling steadily (or even quickly), this needed care is rejected.

Parents don't want to burden their children.

Children who love their parents are looking at their own (often) unstable financial situation and wondering what will they do when mom's money runs out and she still needs care.

This is one of the most valuable -- and needed -- benefits of the VA pension disability payments. The extra money every month (up to $2000), can literally mean the difference between getting the care that is needed and simply skipping it.

Skipping needed care rarely works out well. This may accelerate the physical or mental decline and force someone into a nursing home environment quicker than is necessary.

Explore your options and find out if the VA pension benefit is a valid option for you.

If you live in Alabama and have questions about this benefit for you or your spouse or your parents, please let us know by calling us at 205-879-2447 or you can fill out a contact form on our Alabama Consumer site. Do note we are creating a separate site just for this area of the law in Alabama but it is not up and running yet so feel free to give us a call at 205-879-2447.