Question: What are the requirements for my elderly mother to receive Veterans Benefits, specifically VA Aid & Attendance benefits from the Veterans Administration?
Answer: I personally know how difficult and stressful these decisions are. Taking care of an elderly parent is time consuming, and has its emotional and financial costs, yet it can be very rewarding. I understand the goal is to ensure your parent(s) receive the greatest quality of care in the least restrictive setting at the least cost to themselves and their family. It is always wise to plan for the worst and hope for the best.
The laws pertaining to elder law, Medicaid planning, care contracts and Veterans benefits are complex, confusing and ever changing. You need an elder law attorney to help navigate through these waters. In regard to Veterans benefits planning you must seek counsel from an attorney who has been accredited by the United States Department of Veterans to prepare, assist, counsel and process claims.
You have asked a specific question in regard to Aid and Attendant Care/Improved Pension Benefit. This benefit is a non-service connected benefit to war time veterans and the surviving spouse of war time veterans. For purposes of your question we will assume that your mother is a widow of a war time veteran. In order for one to be a war time veteran one has to have served 90 days in the service with one of those days during a declared war time period.
In addition to discussing Veteran benefits herein, you need to ensure your mother’s affairs in order. Therefore, I have also discussed the critical need for your mother, provided she is competent to establish proper health and financial durable power of attorneys. As an elder law attorney, I specialize in estate planning but kick it up a notch. I have a different philosophy than most true estate planners. This does not mean they are wrong but we approach things very differently.
Specifically I address the issues of:
- Who will make my medical decisions when I am no longer able to make them?
- If I unable to care for myself, how can I achieve the greatest quality of care without bankrupting me or my family?
- Who will make my end of life decisions?
- What happens if I get sick and can’t stay in my home anymore?
- How am I going to pay for it?
I also prefer having medical day to day decisions, specifically the durable power of attorney for health care becoming effective the moment you sign them rather than becoming effective when a person is no longer able to participate in their decisions. It is just more workable. Last, the financial power of attorney needs to authorize gifting and authority to apply for Governmental benefits. However, Veterans does not recognize power of attorneys but use a different procedure.
We need to determine who owns what asset and if the financial power of attorney provides the authority to someone to gift (transfer) assets so that we can protect them and qualify your mother for Veteran’s benefits. Further, if you mother is not competent and has power of attorneys we need to take immediate steps to implement your mother’s durable powers of attorneys for health care and financial decisions.
As for Veterans benefits they are and can be an excellent option to help pay for assisted living, home care and subsidize medical expenses. A husband and could be eligible for a benefit of $2,054 a month or $24,000 a year tax free income. Usually the benefit is paid to the Veteran and if the Veteran is deceased to the surviving spouse. If the Veteran does not need care and is paying for the care of his “ill” spouse then the Veteran may be eligible for base pension which can be up to $1,360 a month tax free. If both veterans need care then the maximum is $2.054 a month. Assuming your father is deceased, then your mother as a widow of a war time veteran would be entitled to $1,132 a month. Remember as long as the Veteran is alive the benefit flows through the actual veteran.
However, there are four prongs that must be satisfied to qualify for the AA Benefit. Each prong is explained in detail below..
First, There is a Service Prong:
First, in order to be eligible for the AA Benefit the Veteran must meet the service requirement. That is, the Veteran must have served in the active military, navy or air service: (1) for 90 consecutive days or more during a period of war, (2) during a period of war was discharged under conditions other than dishonorable or released from such service for a service-connected disability, (3) for a period of 90 consecutive days or more and such a period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two separate periods of service during more than one period of war.
Second, There is a disability prong. Additionally, the applicant must be “permanently and totally disabled”; however, the VA presumes “disability” for individuals over the age of 65. To qualify for additional funds, the VA requires one to need “care or assistance” on a “regular basis” from another person which protects him or her from “dangers of a daily living environment”. It is generally presumed that an applicant who is residing in an assisted living facility satisfies this requirement. The VA has issued clear guidelines that a veteran or a widow of a veteran must need assistance with at least two activities of daily living, such as eating, bathing, dressing, transferring and toileting or being cognitively impaired. The VA has made it clear that assistance with ones IADL’s is not enough, such as medication reminders, laundry and meal assistance/preparation.
Further, one needs to obtain the proper physician verification to satisfy the disability requirement. If possible, the physician should indicate that one is able to “oversee” his or her financial decisions, but not able to “manage” his or hers financial decisions. In the event the physician states that one is not competent to make his or her financial decisions, then the Veterans Administration will find a level of incompetence which will delay (but not preclude) the application process.
Third, is the asset prong. The VA pension benefit is a needs based benefit and a surviving spouse shouldn’t have more than $40,000.00 plus a home and a car. Some persons assisting Veterans will say $80,000. There is no hard and fast rule and therefore we recommend an asset limit of $40,000. Currently there is no penalty (at this time) for transfers. Accordingly, we can transfer everything over $40,000 into a special trust to protect the assets should your parents need them. **NOTE: this is where you have to be very careful because transfers of assets may affect any Medicaid eligibility in the future. Sometimes a proper VA plan for benefits have terrible consequences for Medicaid planning. It is very important to understand if a one’s health deteriorates and need a nursing home then any gift to qualify for Medicaid within 5 years will be very problematic.
Fourth, is the income prong. The basic rule is one’s unreimbursed medical expenses have to exceed or equal their income to qualify for the full benefit amount. If the expenses do not exceed income then if there is a short fall the Veteran can receive a partial benefit.
This may seem simple on the surface, but can be very complicated when you begin to look at transferring assets and eligibility. Additionally, if one were to sell their home while a claim for benefits were pending or after benefits were approved, the proceeds of the home would most likely result in a suspension of benefits for a period of at least one year or longer if the laws change and impose a lookback as we discussed.
Additionally, Congress is considering implementing a 3 year lookback on any transfers. For now the bill did not get of committee, however, it is expected to be reconsidered in the coming year.
The first two steps are to compile one parent(s) medical expenses and obtain the physicians certificate. Once the application is filed it can take anywhere between 6 months to a year to obtain the benefit, but the payment is retroactive to the date of the application. The VA has recently established a “fully developed” process which is much faster than the regular application process. This is the process that one wants to make sure they use. Of course processing times are not guaranteed. Additionally, once the VA acknowledges the application there are ways to expedite the process from there.
As you can see it is not that simple when one says how can I qualify for VA benefits. The bottom line is one should consult a competent elder law attorney accredited by the US Department of Veterans.
Don L. Rosenberg, Attorney and Counselor
Troy, Michigan