Presenting a live 90 -minute webinar with interactive …media.straffordpub.com/products/maximizing-va-benefits...2014/02/06 · Continuing Education Credits For CLE purposes, please

Maximizing VA Benefits: Advanced Legal Strategies for Meeting Eligibility Requirements and Drafting Trusts Achieving Asset Protection, Income Tax Savings and Asset Control From Both Crisis and Planning Perspectives

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

THURSDAY, FEBRUARY 6, 2014

Presenting a live 90-minute webinar with interactive Q&A

Kim Boyer, Certified Elder Law Attorney, Boyer Law Group, Las Vegas

Angela N. Manz, Attorney, The Law Office of Angela N. Manz, Virginia Beach, Va.

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-961-9091 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of attendees at your location

• Click the SEND button beside the box

If you have purchased Strafford CLE processing services, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form).

You may obtain your CLE form by going to the program page and selecting the appropriate form in the PROGRAM MATERIALS box at the top right corner.

If you'd like to purchase CLE credit processing, it is available for a fee. For additional information about CLE credit processing, go to our website or call us at 1-800-926-7926 ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

VA Eligibility

Presented by: Kim Boyer

CELA and VA Accredited Attorney [email protected]

© 2014 by Boyer Law Group 5

2Boyer Law Group

Offices of Boyer Law Group Kim’s baby, Cody.

10785 West Twain Avenue, Suite 200Las Vegas, NV 89135

Phone: ( 702) 255-2000

6 Boyer Law Group Eldercare Planning & Advocacy

Veterans Benefits

Honoring America’s Heroes

“America’s Veterans deserve the best health care and compensation system we can provide.”

(Anthony Principi, Secretary of Veterans Affairs, News Release,

February 3, 2003).

Boyer Law Group Eldercare Planning & Advocacy 7

History of the VA

The first US Congress passed a law in 1789 to provide pension to disabled Veterans and their dependents.

In 1930, the Veterans Administration was established.

In 1989, the Veterans Administration became the Department of Veterans Affairs (“VA”)


Overview of the VA

Office of the Secretary Office of the General Counsel Veterans Benefits Administration (VBA) Veterans Health Administration (VHA) National Cemetery System


Who is Eligible for Benefits?

Veteran Veteran’s Dependent(s) Surviving Spouse of the Veteran Child or Parent of a Deceased Veteran Active Duty Military Service Member

Member of the Reserve or National Guard


Benefits and Services Available

Health Care Compensation: Must have at least a 10% service

connected disability Pension: Also called Aid & Attendance Vocational Rehabilitation & Employment Education & Training Home Loans Life Insurance


Benefits for Dependents & Survivors

Dependency & Indemnity Compensation (DIC)

Death Pension

VA Civilian Health & Medical Program (CHAMPVA)

Dependents and Survivors Education & Training

Home Loans Boyer Law Group

Eldercare Planning & Advocacy 12

Burial Benefits

National Cemetery System: - Also available for spouses and dependents

Private Cemetery System: Spouses and dependents are not eligible

Eligibility: To confirm eligibility contact a Veterans Benefits Counselor

www.cem.va.gov Boyer Law Group


http://www.cem.va.gov/

Veterans Health Administration

Purpose: To provide inpatient and outpatient care, geriatric evaluations, nursing home care, domiciliary, home health , adult day care, residential/respite care The Veteran must “enter the system” (VA Form 10-10EZ).

Enrollment is set up in 8 priority groups, with Group 8 being the lowest.

Prescriptions: Veterans who are “in the system” may obtain their prescriptions from the VA clinic.


Veterans Health Administration

Nursing Homes: The VA provides skilled nursing care to certain Veterans. Federal VA Nursing Homes. The Veteran must have a 70% or higher service-connected disability. Private Nursing Homes: These are private nursing homes that have a contract

with the VA. Eligibility requirements are the same as for Federal. State Owned VA Nursing Homes: Qualifications are state specific.


Compensation

“There is no VA benefit the public supports more strongly than compensation for veterans injured during combat or while on active duty. Institutionally, the VA protects the compensation program before all of its other benefits programs…”

(Veterans Benefits Manual, NVLSP, Lexis, Page 56 (2004)


Compensation

Compensation is for a Veteran who obtained an injury or disease while on active duty, and the injury was the result of his service or was exacerbated by service.

Compensation is not barred by the Veteran’s employment.


Compensation Eligibility Requirements

Veteran was discharged or released under conditions other than dishonorable.

Their disease or injury was incurred or aggravated in the line of duty.

The disability is not a result of the Veteran’s own willful misconduct or abuse of drugs or alcohol.

Must have a service-connected disability rating.


Compensation – Eligibility Requirements

To obtain Compensation, the Veteran must prove 3 essential requirements: There must be a medical diagnosis of “current” disability. There must be medical, or lay evidence, of in-service occurrence or aggravation of a

disease or injury. There must be a nexus between the in-service

occurrence or aggravation of a disease or injury and the current disability.


Basic Eligibility Criteria

All of the following criteria must be met before a Veteran or widow(er) of a Veteran can receive Improved Pension benefits: Veteran must have served at least 90 days consecutive

active duty. Discharge other than dishonorable Limited assets and income available Disability was caused without willful misconduct of the

Veteran Submit a signed application


Improved Pension – Aid & Attendance

Veterans or widow(er)s of Veterans are entitled to an Improved Pension which will provide a Special Monthly Pension (SMP) to offset the cost of necessary health care.

3 types of SMP: 1. Low Income Pension 2. Housebound benefits 3. Aid & Attendance

Boyer Law Group


Low Income Pension

Low Income Pension is the VA’s equivalent to SSI. The claimant must meet all the criteria for Improved

Pension, and have income and assets below a specified criteria.


Aid & Attendance

Aid & Attendance benefits are available to a Veteran or widow(er) of a Veteran who meets one of the following conditions:

Claimant is blind Claimant is living in a nursing home; or Claimant is unable to:

Dress/undress or keep self clean and presentable Unable to attend to the wants of nature Has a physical or mental incapacity that requires

assistance on a regular basis to protect Claimant from daily environmental hazards


Asset Requirements

Standard: The VA considers the net worth of the

individual seeking benefits, excluding the value of the person’s home, furnishings and car.

Presumption of Sufficient Means: No specific dollar amount can be designated as

excessive net worth.

Some determining factors are: Income from other sources Family expenses Claimant’s life expectancy Convertibility into cash of the assets involved


Asset Requirements

Age Analysis:

The VA has begun instructing caseworkers to perform an “age analysis” to determine financial need.

Assets that are counted toward the “sufficient means”

fluid figure include bank accounts, certificates of deposit, money market accounts, investment accounts, annuities, retirement accounts, life insurance cash surrender values, etc. Boyer Law Group


Importance of Rating

While certain classes of Veteran and spouse do not necessarily require a medical need in most cases a medical need for assistance or supervision due to disability will be crucial to obtaining the pension benefit.

A medical rating allows certain medical expenses

and ancillary non-medical expenses to be annualized and subtracted from annual income in order to meet the income test.


A & A Income Limits

Gross income cannot exceed Maximum Allowable Pension Rate (MAPR) for that category of application.

If the Veteran obtains a medical “rating,” then the following may be deducted from income: Medical Expenses Health Care and Insurance Premiums/Deductibles Prescriptions, hearing aids, transportation, etc. Home Health Care Assisted Living Facilities Nursing Home Care Boyer Law Group


Surviving Spouse

The spouse had to be married to the Veteran, through a valid marriage, at the time of the Veteran’s death.

Must prove: They were married to the Veteran at least 1 year prior to death. Lived continuously with the Veteran. Widow(er) has not remarried since the death of the Veteran,

with some exceptions.


Who Can Represent a Claimant?

The Claimant can represent himself or herself directly A Veteran Service Organization (VSO)

An individual who has been accredited by the VA

A “one-time” power of attorney Attorney who is a member in good

standing with a State Bar and has been accredited by the VA


Fees

Organizations or individuals, including lawyers, are not permitted to charge fees for assisting a client with completing and filing applications.

No fees for the “preparation, presentation, or prosecution of claims.”

If a claim is denied or approved for fewer benefits than expected, reasonable fees can be charged AFTER a Notice of Disagreement (NOD) has been filed.


Appeals

Regional Office – Notice of Disagreement

Board of Veterans Appeals (BVA) – Hearing

U.S. Court of Appeals for Veterans Claims (CAVC) – Briefs

U.S. Court of Appeals in Federal District


The Application Process 32


Learn the facts…

T h e A f f o r d a b l e C a r e A c t Boyer Law Group


Overview

Stated purposes of ACA:

Insure more Americans Control Healthcare costs Add consumer benefits and protections

Sticks and Carrots…to Meet Purposes Individual Mandate Creation of Health Insurance Exchange Financial incentives for small businesses


What is the Penalty if I Don’t Have Insurance?

The IRS will enforce a tax penalty. $95.00 or 1% of your income (whichever is greater) in

calendar year 2014. $325 or 2% of your income (whichever is greater) in calendar year 2015. $695.00 or 2.5% of your income (whichever is greater) in

calendar year 2016. There are exemptions from the individual mandate for

certain religious groups, Native Americans and for people who face a financial hardship that precludes them from purchasing health insurance.


Nevada’s Medicaid Expansion

75,000 – 78,000 more Nevadan’s will be eligible. Offered to all individuals who meet the income requirements, even to men and women without young children. (≤ 138% FPL) (133% of poverty level 2013 = $1,273.48)

http://www.safetyweb.org/fpl.php

Federal government will match 100% initially, 90% after 2020, saving Nevada an estimated $16 billion according to Gov. Sandoval.

Information courtesy of The Office of Consumer Health Assistance


Affordable Care Act

Affect on the DWSS Aged, Blind and Disabled programs:

None. The Medical Assistance for the Aged Blind and Disabled (MAABD) program is not affected by the ACA


Silver State Exchange

Implementation Date: January 1, 2014 Went Live: October 1, 2013 How it Works

All applicants will be evaluated for all programs including Advanced Premium Tax Credits (APTC) through the Silver Sate Health Insurance Exchange. Coordinated eligibility system

www.nevadahealthlink.com

Boyer Law Group


http://www.nevadahealthlink.com/

Goals of the Exchange

Increase the number of insured persons in Nevada Facilitate the purchase and sale of health insurance Assist qualified employers in the enrollment and

purchase of health coverage and the application for subsidies for enrollees

Provide consumer education on matters relating to enrollment in and effective use of health insurance Assist residents of Nevada with access to programs,

premium assistance tax credits and cost-sharing reductions

Information courtesy of State of Nevada Office of Consumer Health Assistance


Can I Purchase a Qualified Health Plan Outside of the Exchange?

Insurance carriers that offer qualified health plans on the exchange will offer the same product outside the exchange. The exchange is the only place that you can receive premium assistance in the form of an advance premium tax credit or cost sharing reductions.

The advance premium tax credit is not available if you earn more than 400% of poverty level ($44,680.00 in 2012); the cost sharing reduction is not available if you earn more than 250% of poverty level ($27,925.00 in 2012).


Boyer Law Group Eldercare Planning & Advocacy

Individuals have more rights with insurance companies such as appeal and benefits cannot be denied because of pre-existing conditions.

Insurance companies cannot set annual dollar

amount on coverage. Health insurance coverage for individuals under the

age of 26 through their parents’ insurance plans.

41

Health Care Surtax

Currently workers pay 1.45% of their wages into Medicare.

In 2013, certain individuals will pay another 0.9% on their earned income.

In 2013, certain individuals will pay a 3.8% surtax on a portion of their investment income.


Health Care Surtax (continued)

Medicare Surtax equals the lesser of net investment income or the excess of modified adjusted gross income.

Net Investment Income: Interest

Dividends

Annuity distributions

Rents

Royalties

Capital gain derived from disposition of property Boyer Law Group


Health Care (continued)


Other Sources of Revenue to Pay for ACA

New fees on pharmaceutical and health insurance industries

Fine on individuals without insurance Fine on “expensive” health insurance plans

beginning in 2018 ($10,200 for an individual and $27,500 for a family)

Changes to health savings accounts Medical deduction increased from 7.5% to 10% (will apply to seniors in 2017) Boyer Law Group


How Will the ACA Affect Medicare?

The ACA includes one significant improvement, but makes Medicare a target for spending cuts. Under the ACA, the infamous “donut hole” in Medicare’s prescription drug coverage will be slowly phased out and will close in 2020.

Seniors are wondering who is going to pay for the ACA. According to the Congressional Budget Office,

hundreds of billions of dollars in funding for ACA will be generated by cuts in Medicare’s budget over the next decade.



The ACA includes one significant improvement, but makes Medicare a target for spending cuts. Under the ACA, the infamous “donut hole” in Medicare’s prescription drug coverage will be slowly phased out and will close in 2020.

Seniors are wondering who is going to pay for the ACA. According to the Congressional Budget Office,

hundreds of billions of dollars in funding for ACA will be generated by cuts in Medicare’s budget over the next decade.



The biggest spending cuts will come in reduced number of plans available, reduced benefits in the Medicare Advantage program, and reduced payment rates to doctors who care for Medicare patients.

Perhaps of more concern for seniors is the presidential commission called the

Independent Payment Advisory Board. This board will be given significant power to cut Medicare spending in the future because its decisions will automatically take effect unless counteracted by Congress.


ACA Scorecard

Uninsured

Private Insurance Market

Medicaid Recipients

Employer-based Plan

Medicare Recipients

Finally get covered at low or no cost

Able to buy insurance with same advantages employer-based plans enjoy

System could be overwhelmed / Doctor resistance could grow

Taxed for first time/Drop coverage/More part-time positions

Major spending cuts 49 Boyer Law Group

Eldercare Planning & Advocacy

Silver State Health Insurance Exchanges

2310 South Carson Street, Suite 2

Carson City, NV 89701 (775) 687-9939

[email protected]

www.exchange.nv.gov

Information courtesy of State of Nevada Office of Consumer Health Assistance


Questions

[email protected] www.elderlawnv.com Boyer Law Group


mailto:[email protected]

Coming in 2014:

Boyer Law Group 10785 Twain Ave., Ste. 200, Las Vegas, NV 89135 (702) 255-2000

[email protected] www.elderlawnv.com

52

Available now! 1-800-621-2736

Boyer Law Group Eldercare Planning & Advocacy

52

http://www.unpress.nevada.edu/


Advanced Legal Strategies for Meeting Eligibility Requirements and Drafting Trusts

Maximizing VA Aid and Attendance Benefits

3097 Brickhouse Court

Virginia Beach, VA 23452

Tel: 757-271-6275 | Fax: 757-273-7129

www.manzlawfirm.com

[email protected]

53

http://www.manzlawfirm.com/


Disclaimer

• This presentation does not constitute legal, accounting, or other professional advice. Only through a personal, confidential consultation with qualified legal counsel can anyone properly evaluate their own unique estate planning challenges and determine what, if any, appropriate legal strategies and tactics should be used.

54

IRS Circular 230 Disclaimer

• Nothing in this presentation is intended or written to be used, and cannot be used by any person for the purpose of avoiding tax penalties regarding any transactions or matters addressed herein. You should always seek advice from independent tax advisors regarding the same.

55

Asset Protection Planning

• Two approaches: • Preplanning – when client is not looking to

become immediately eligible for the pension benefit.

• Crisis Planning – when client needs benefits now.

56

Crisis Planning

• The VA currently has no lookback period at this time and no penalty for making uncompensated gifts or transfers.

• However, transfers to a relative living in the home are ineffective.

• To be effective, transferor must relinquish all rights of ownership, including control and the right to receive income. See 38 CFR §3.276

• The VA is considering implementing a three year lookback period. 57

Crisis Planning

• There are several planning strategies to use: • Purchasing needed items or making home

repairs • Payments to a caregiver child • Outright gifts to children or family members • Partial interest transfers • VA compliant annuities • Transfers to an irrevocable trust

58

Payments to a Caregiver Child

• The claimant may pay his/her child for caring for them.

• This raises the claimant’s medical expenses for VA purposes, which can then allow them to be eligible where they otherwise may not have been.

• This also allows the claimant to spend down additional assets. The issue is that the claimant won’t be eligible until those assets have been spent. 59


• Claimant must be able to provide invoices to the VA, signed by the caregiver that show: • The amount paid • Date payment was made • Identification of the provider to whom payment

was made • Name of person for whom service provided • Nature of product or service provided (description

of care service)

60


• The VA is not as stringent as Medicaid on their requirements for paying a caregiver.

• However, because many clients may need Medicaid in the future, make sure that you comply with the Medicaid rules for paying caregivers.

61

Outright Gifts

• The claimant can transfer funds outright to a child or other family member without penalty (as long as person not living in claimant’s home).

• Typically done when there are limited family issues or limited funds to transfer.

• Best used for cash and other non-appreciated assets.

62

Outright Gifts

• No step up in cost basis at grantor’s death. • No asset protection for family member

holding gifted funds – could be subject to creditors, divorcing spouse, etc.

63

Partial Interest Transfers

• Transfer of a partial interest can reduce the claimant’s interest in proportion to the amount transferred.

• Ex. Veteran has a bank account worth $50,000. He adds his son’s name to the account (son does not live in the veteran’s home). The veteran’s portion of this account is now $25,000.

• Be careful with this. The VA is scrutinizing these claims closely. It may be difficult to get this to pass VA muster.

64

VA Compliant Annuities

• The claimant may purchase certain types of annuities to reduce their assets for VA purposes.

• Ex. Single premium immediate annuities, some balloon annuities.

• Annuity may not have an cash value because the cash value is countable.

• Can work well for life insurance with taxable gain, IRA’s or current annuities. 65


• Must ensure that the annuity is Medicaid compliant (or can be made Medicaid compliant) if the claimant or spouse may need Medicaid within 5 years.

• Otherwise the annuity purchase would be an uncompensated and penalized transfer.

66


• Caution – purchasing an annuity will raise the claimant’s income and can then disqualify the claimant for VA benefits if not careful.

• The claimant must have enough medical. expenses to still qualify for VA benefits after the annuity is purchased.

• Often used to convert a countable asset to income when the IVAP is a negative number.

67

Veterans Asset Protection Trusts

• VA trusts should be drafted very carefully in order to fully protect the applicant’s assets from being counted as a resource and to allow the applicant the maximum tax benefits allowed.

• The trusts we discuss today are self-settled irrevocable asset protection trusts.

• Typically, these trusts will contain provisions that allow for grantor trust treatment. 68

Veterans Asset Protection Trusts

• The guidance we have for VA benefits and irrevocable trust planning comes from general counsel opinions, such as 72-90, 73-91, and 33-97. These opinions are included in your Appendix.

• The guideline for VA irrevocable trust planning is that trust assets will be countable unless claimant relinquishes "all rights of ownership" and "the right of control of the property." 38 C.F.R § 3.276 (b)

69

Trust Income

• For VA purposes, the Grantor should not retain the right to receive income from the trust.

• Nor should the Grantor be taxed on the trust income, even if he does not receive that income.

• Although there is no precise VA regulation on this point, if the Grantor retains the right to the income, or is taxed on the trust income, then the entire corpus of the trust may be counted as an asset.

70

Trust Income

• VA General Counsel opinions on this subject are vague at best. None are very recent.

• By reading them, it could appear as though the Grantor may retain an income right to trust assets without the principal counting as a resource. However, this specific issue has not yet been decided by the VA.

• To be conservative, do not allow your Grantor the right to income from the trust.

71

Trust Principal

• For VA purposes, the Grantor should also not retain a right to the principal or the right to divert assets back to the Grantor’s benefit.

• The trust should name a beneficiary (other than the Grantor) to receive principal distributions during Grantor’s lifetime (“lifetime beneficiary”).

72

Trust Principal

• The lifetime beneficiary may not be living in the Grantor’s household.

• The VA considers transfers to a person living in the Grantor’s home as being disregarded and the VA will count the value of those assets as a resource for the claimant.

73

Trust Principal

• If trust property is sold, the proceeds should remain in the trust or be paid to the lifetime beneficiaries.

• The trust proceeds should not be paid to the grantor upon sale of trust property.

• Grantor may retain a limited testamentary power of appointment.

• Having a testamentary power of appointment only should not cause trust assets to be countable for VA purposes.

74

Trust Principal

• If have a principal residence, consider using a two-trust strategy.

• Trust one is an Intentionally Defective Grantor Trust. • Holds the residence so proceeds from sale

will not disqualify claimant. • Sale of residence will qualify for 121

exemption. 75

Trust Principal

• Other assets held in nongrantor trust. • Mandatory payment of income to lifetime

beneficiaries. • Step-up can be achieved through a

testamentary limited power of appointment. • No power to distribute accumulated income, only

principal (to avoid having it treated as a grantor trust)

• Executed by Will only (again to avoid grantor trust treatment)

76

Two-Trust Strategy

• Trust 1 holds the principal residence only. Trust 1 is an IDGT, no income to grantor, limited power of appointment for the step-up.

• Upon sale of the home, proceeds are distributed out or into the 2nd irrevocable trust.

• Trust 2 holds all other assets, mandatory payment of income to lifetime beneficiaries, limited power of appointment for the step-up. 77

Two-Trust Strategy

• Nongrantor subtrust uses a new tax ID number

• Mandatory payment into the nongrantor trust upon the sale of the principal residence

• No ability to rent the principal residence. • Includes decanting powers in both subtrusts.

78

Supplemental Needs Trusts

• The VA will count all funds in a Supplemental Needs Trust as an asset for the claimant (including self settled SNT and testamentary SNT) so these types of trusts should not be used for VA benefits eligibility planning.

79

Trust Advisors

• Given the uncertainties of the law, it may be advisable to appoint a Trust Protector or Advisor.

• A Trust Advisor is an individual to whom the trust has granted any number of discretionary powers.

• With proper planning, appointing a trust advisor can add a level of flexibility to the trust.

• Trust Advisors may be used to amend or terminate the trust, select successor trustees, and direct distributions.

80

Trust Advisors

• Take care to select a trust advisor who is not a subordinate or related party to avoid the allegation that the appointment of the trust advisor is a sham to allow the grantor to remain in control.

• Note also that state trust law concerning the use of trust advisors varies and should carefully be consulted, especially regarding when the trust advisor may be deemed to be acting in a fiduciary capacity. 81

Rules for Trustees

• VA regulations state that the claimant must relinquish “all rights of ownership" and "the right of control of the property."

82

Rules for Trustees

• VAOPGCPREC 73-91: Generally, where a veteran places assets into a valid irrevocable trust for the benefit of the veteran's grandchildren, with the veteran named as trustee, and where the veteran, in an individual capacity, has retained no right or interest in the property or the income therefrom and cannot exert control over these assets for the veteran's own benefit, the trust assets would not be counted in determining the veteran's net worth for improved-pension purposes, and trust income would not be considered income of the veteran.

83

Rules for Trustees

• Although this opinion would appear to allow a Grantor to serve as Trustee, there has not been a specific General Counsel opinion directly on point.

• Allowing a Grantor to serve as Trustee could be construed by the VA as the grantor retaining control of the trust assets in some manner.

• Therefore, for VA benefits purposes, consider appointing an individual other than the Grantor to serve as Trustee. 84

Grantor Trust Provisions and Trustee Powers

• Avoid the Grantor retaining the power to revoke or amend the trust. This creates a revocable trust. All assets in a revocable trust will be countable for Medicaid and VA purposes.

• Consider naming a trust advisor and giving the trust advisor the power to make limited changes to the trust. Neither the Grantor nor the Trustee should act as the trust advisor.

85

Grantor Trust Provisions and Trustee Powers

• Avoid using property substitution to achieve grantor status because that could cause trust property to be considered as a resource for VA purposes.

• Avoid allowing the Grantor to remove and replace trustees as this could cause trust property to be considered as a resource for VA purposes.

86

Preplanning Cases

• Consider which of the crisis planning methods would work for your client • Purchasing needed items or making home

repairs • Payments to a caregiver child • Outright gifts to children or family members • Partial interest transfers • VA compliant annuities • Transfers to an irrevocable trust

87

Preplanning Cases

• Typically, preplanning cases involve utilizing the Veteran’s Asset Protection Trust.

• After the trust is funded, Medicaid eligibility may be established after 5 years.

• If the client needs Medicaid services sooner, the trust may be unwound to allow for Medicaid crisis planning.

• If client needs VA benefits, the assets will already be structured to allow for eligibility.

88

Preplanning Cases

• Other preplanning strategies include gifting funds to children, spending down excess resources and payments to a caregiver child.

• Life estates are typically not a recommended strategy for VA cases. The VA will count the entire value of the property as an asset. Therefore, consider using the Irrevocable Trust to hold property (including the residence) instead of a life estate.

89

Medicaid and VA Aid and Attendance Benefits

• Always evaluate both Medicaid and VA Aid and Attendance benefits for a client. One may be better than the other, depending on their circumstances.

• Further, ensure that planning for one benefit does not prevent the client from being able to receive the other benefit at some point, unless that it part of the plan. • Ex. Transferring assets to obtain VA benefits eligibility

means that the client may not be eligible for Medicaid for 5 years. That is acceptable as long as it is part of the comprehensive plan and that there is a strategy for obtaining Medicaid should the client need services before the 5 year lookback period is over.

90

Thank You For Attending!

3097 Brickhouse Court | Virginia Beach, VA 23452

Tel: 757-271-6275 | Fax: 757-273-7129

www.manzlawfirm.com

[email protected]

91

http://www.manzlawfirm.com/


Documents

Presenting a live 90 -minute webinar with interactive …media.straffordpub.com/products/maximizing-va-benefits...2014/02/06 · Continuing Education Credits For CLE purposes, please