When is Claims Help Needed for the Aid and Attendance Benefit?

Claims for Pension involving income above the limit and a rating for aid and attendance are complicated. Most families and some Veterans Service Officers often don’t get these claims right. Expert help is needed.

Accreditation

Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited. The only exception to this law is that any one person can help any veteran -- one-time only -- with a claim. To help any veteran a second time requires accreditation.

VA recognizes 3 types of individuals for purposes of accreditation.

• Accredited attorneys,
• Accredited agents, and
• Accredited representatives of service organizations (Veterans Service Officers).

In order to be accredited to help veterans with new claims, an individual desiring this authority from VA must submit a formal application, must meet certain character requirements and work history requirements and, except for attorneys, must pass a comprehensive test relating to veterans claims and benefits. There are also requirements for ongoing continuing education. Without accreditation no one may help a veteran with a claim more than one time.

Paying a Fee for Help with Filing a Claim

Federal code and VA regulations prohibit an accredited agent or accredited attorney from charging a fee to provide assistance with an application prior to an unfavorable decision from VA. Some accredited practitioners or providers help their clients for free, sometimes in the context of solving other retirement issues or providing long term care services. Some practitioners offer non-claim related consultations for a fee but will send their clients to a veterans' service organization to complete the application.

Situations Where an Advisor Should Be Used for Help in Filing a Claim

Below are six situations where using an advisor, who understands the claims process for Pension, can be of great help or in some situations a necessity. There are undoubtedly more situations that may exist and as reports come in from advisers, we will add them to this list.

Using an Accredited Advisor Where Complexity or Time Constraints Justify Paying Someone for Advice Not Related to the Filing of a Claim

Attempting to gather up the necessary forms and researching what information is necessary for a successful claim can be a daunting task. This is especially true for busy family members who are employed full time and are trying to help a loved one obtain a VA benefit. Using an advisor who has significant experience in what forms are necessary and what strategies should be used in submitting paperwork is crucial to getting a timely decision. Without this knowledge, someone filing for the first time will likely miss something that is important which will stretch out the decision and possibly result in a lesser benefit or no benefit at all.

Using an Accredited Advisor When Submitting Claims Applications for Nursing Homes

We discussed in a previous section that a Pension claim for a potential beneficiary in a nursing home is a straightforward task that by itself, would not require the help of an advisor. Unfortunately, the pension benefit is usually not enough to cover the difference between the beneficiary's income and the cost of the nursing home. In many cases, the veteran or the surviving spouse in the nursing home is forced to apply for Medicaid.

Dovetailing Medicaid income with the Pension benefit could work in some cases but in other cases Medicaid and Pension don't mix. In those cases where it fits, Pension can be a valuable additional resource for a nursing home patient. When trying to make Medicaid and Pension work together, a potential claimant should always seek out the advice of a knowledgeable advisors. Certain legal strategies relating to Medicaid eligibility could be applied in these special cases. Advisers, who understand Medicaid rules and VA eligibility, might be able to apply some of these strategies to produce more household income.

Using an Accredited Advisor with Applications Where a Single Claimant Will Be Abandoning the Principal Residence

When a single veteran or a single surviving spouse of a veteran leaves his or her principal residence to live in assisted living or in a nursing home, there could be a potential conflict with a Pension benefit award. VA will not count the principal residence against eligibility for Pension income as long as it is occupied by the veteran or spouse.

On the other hand, the family or the beneficiary may wish to rent out the house or sell it. The principal residence remains exempt for Pension purposes as long as the person’s name who is on the title is receiving custodial services or medical services in another location. However, rental income ads onto the income of the pension beneficiary and may disqualify that person. Selling the house while the beneficiary is on claim results in an asset that must be counted under the asset limit rules. In this case, the sale could also disqualify the Pension claimant. And advisor should be used to make sure that this loss of qualification for the benefit does not occur.

Using an Accredited Advisor with Applications That Require Estate and Tax Planning

Gifting of assets many cause tax problems for unwary benefactors. This might include loss of the step-up in value for real estate or conversion of capital gains to ordinary income. Also, outright transfers to members of the family may not be a good idea in certain situations. Any such planning that results in triggering a three year look back penalty will disqualify for benefits. An advisor should always be used when any assets are subject to estate or tax planning.

Using an Accredited Advisor with Applications That Involve Business Ownership, Farms, Business and Investment Property and Assets That Are Difficult to Turn into Cash

Disposition of these types of assets is always more difficult than dealing with a more liquid estate. It is an absolute necessity for business owners, farmers and those with substantial real estate holdings to consult with someone who can provide reliable advice on determining asset values. In some cases, non-liquid assets can be retained and still not disqualify for a Pension income. Tax considerations are always paramount with these types of properties.

Please refer to the table of contents in the top right column of this page for more topics on Pension with Aid and Attendance.

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