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 a 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 wartime 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 www.annistonva.com. 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 may be 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 annistonva.com and look at those videos. There’s also a 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 wartime veteran. What does that mean? It means you have an honorable discharge or a better than a dishonorable discharge. What does wartime 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 getmydd214.com. Get, G-E-T my, M-Y DD so that’s D as in David, D as in David 214.com. 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. Annistonva.com 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.

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