The Elder Firm, LLC - Nathan J. Forck, Attorney

Monday, July 30, 2012

Annuity Purchased Post-Initial Eligibility Determination Is Not Available Resource

Great news for Medicaid-compliant annuities for married couples!  Way to go 10th Circuit!

Reversing a district court, a U.S. court of appeals holds that an annuity is an unavailable resource even if it is purchased in addition to the community spouse resource allowance, and that there is no transfer penalty for the couple's purchase of the annuity prior to a determination of Medicaid eligibility. Morris v. Oklahoma Dept. of Human Services (10th Cir., No. 10-6241, July 9, 2012).


Monday, July 2, 2012

RED ALERT! Congress Attempting Bipartisan Shafting of Veterans Once Again!



The text of a Senate bill imposing asset-transfer rules on VA pension applicants is now available.  S. 3270, introduced by Sen. Ron Wyden (D-OR) and Sen. Richard Burr (R-NC), would require the Secretary of Veterans Affairs to look back 36-months for any uncompensated transfers that a veteran, spouse, surviving spouse or child otherwise eligible for a pension may have made. As ElderLawAnswers reported, the bill comes on the heels a U.S. Government Accountability Office (GAO) report that found abuses among a small group of attorneys and financial planners who help veterans transfer assets in order to qualify for VA pension benefits like Aid and Attendance.Under the bill, the Secretary would look for any resource that was part of the “corpus of the estate” of the veteran and of the veteran’s spouse that the secretary considers would be “reasonable” to be consumed for claimant’s maintenance.  The look-back period would commence on the date of the pension application or the transfer, if it is later. The legislation calls for the imposition of a penalty period if an uncompensated transfer has been made, and the penalty would be calculated by dividing the value of the transferred resources by the amount of the monthly pension the claimant would otherwise be entitled to.  The panalty could not exceed 36 months.A pension will not be denied if transferred assets are returned or if the denial or discontinuance of payment would work an undue hardship.The legislation would take effect one year after enactment and apply to pensions applied for or redeterminations after that date.

Right now, there is no "transfer penalty" for transfers of assets for less than fair market value when applying for VA Aid and Attendance pension benefits.  This bill, if passed, would impose a transfer penalty of up to 36 months of ineligibility for veterans benefits that the veteran would have otherwise qualified for based on the amount that was transferred by the veteran within three years prior to applying for benefits.  

VA benefits are hard enough to obtain for veterans as it is and this law will exponentially complicate and frustrate veterans who would otherwise be eligible for benefits.  The complex nature of calculating transfer penalties and look-back periods can be mitigated with the help of an experienced elder law attorney in the context of an application for Medicaid.  

HOWEVER, a ridiculous federal law exists that does not allow attorneys to receive compensatino for assisting applicants for VA benefits.  Consequently, there is a tremendous lack of advocacy for veterans that need help with applying for these benefits and therefore many veteran applicants simply give up after their initial application is rejected.  This rule will only exacerbate the problem of eligible veterans being unable to qualify for benefits because of the complexity of the application process. 

This is particularly disheartening as it seems as though this is focused on the Aid and Attendance Pension program that the vast majority of veterans don't utilize because they don't realize that they could become eligible.  Unlike the Veterans Disability program, a veteran can be eligible even if they were never deployed to a combat zone and their eligibility is NOT predicated on a service-connected injury or disability.

If you have any questions about qualifying for the VA Aid and Attendance program, please feel free to call my office at (573) 635-3436.  

LINK to article on