Transfer of Asset Penalty | Non-Service-Connected Veteran’s Benefit Requirements

In this episode, Lisa Shoalmire and John Ross introduce a pending change to Veteran’s Benefit requirements which may end in a transfer of asset penalty if not anticipated in advance.

Episode Transcript
John
Welcome to another episode of Aging Insight. I'm your host, John Ross, here with my partner, Lisa Shoalmire. And we're elder law attorneys who bring you this program so that we can provide information to you, so that hopefully you can get the information you need in order to avoid nursing home care, avoid becoming a burden on your friends and family, and avoid spending every dime of your last savings trying to pay for yourself as you grow older. We want you to be able to age in place on your own terms. And we know that you can do those things, you just have to have information. You have to know what's out there and what's available to you. And that's what this program is all about. Now, we've talked about lots of different things on this program. And one of the things that we have talked about in the past is using veterans benefits in order to help cover some of the costs associated with paying for that long term care. But there's some changes in the works.
Lisa
Well, and you know John, our veterans, we appreciate their service so much, and a lot of gentlemen, particularly and there's a lot of ladies out there who have served in the armed forces. And whether we're talking about World War II, the Korean conflict, Vietnam, all the way to Gulf Storm and our most recent engagements in Iraq and Afghanistan, our veterans have served us in a special way, and the Veterans Administration has some special programs that we have discussed on the program before that can assist veterans particularly over the age of 65 as they look at the aging processes. But there are some changes coming to those programs and that's what we wanted to update everyone about today.
John
Right. So the first thing in all of this is to review what it is that we're talking about, because when it comes to veterans benefits, they generally come in one of three types. You've got retirement benefits, you have service-connected disability benefits, so those would be benefits available to somebody who was injured during their service. And then there's a third type and these are non-service-connected disability benefits. So, if a veteran served at least 90 days of active duty and at least one of those 90 days was during a period of war, then that veteran is considered a wartime veteran. And as a wartime veteran, if they get to a point where they need somebody else's help with their daily living, maybe they need somebody in the home, maybe they need assisted living, maybe they even need nursing home care. But if they get to that point, there's the possibility that the VA could help with some extra funds. Now, here's where the problem lies with this benefit. This is considered a need-based benefit, which means that you've gotta meet certain eligibility requirements. There's income requirements, there's asset requirements. And because of these requirements, and because dealing with the VA can be so complicated, there have been some rather unscrupulous folks out there who have tried to manipulate the system, not for the veterans' benefit but for themselves.
Lisa
Well, that's right, John. And sometimes, you know how the old saying goes, "It just takes one bad apple to ruin the whole barrel." And really, that's what we've had happen here. We've had some unscrupulous insurance salesmen who have spoken with wartime veterans, a lot of times in very vulnerable position that they need some assistance with their... They're homebound or they need assisted living. And so, in comes this person who says they have some answers that will guarantee to bring in some veterans benefits. And then they proceed to sell that veteran and that veteran's family certain insurance products that they say are required in order to qualify for the veterans benefit. And, of course, the reality is, that insurance product is not required to qualify for the benefit. But those insurance products carry some hefty commissions. But to address this problem, the Congress, believe it or not, has been busy at work on this problem. And, John, you wanna talk about what some changes are coming down?
John
Yeah, the idea was that we have these insurance salesmen posing as people who guide veterans through this process, when in fact, what their real motivation is, is the sale of primarily annuities in one way, shape or form. Now, first thing to understand with all of this is that there is no situation where the purchase of a particular insurance product is required for qualifying for VA. There are requirements of what it takes to meet the income and the asset rules but the purchase of an annuity or something like that is not part of any of that. So we had these people out there, they were doing these sort of things, so as a way to protect the veterans, Congress got together and they said, "Well, we need to come up with some legislation that will stop this practice." And what they have come up with is essentially a transfer of assets penalty. Now, if that phrase "transfer of assets penalty" sounds familiar, it's because you've probably heard the same thing when we talk about, say, the Medicaid program. The Medicaid program, when you're trying to qualify for, say, Medicaid benefits to pay for nursing home care, they have a rule that says, "If you have given away any assets, there will be a period of time where you're not qualified." Well, what Congress is proposing is a similar type of transfer penalty as it will relate to these non-service-connected disability benefits.
Lisa
Okay, John. So we're talking about a non-service-connected veterans benefit, that we're talking about, there is some means testing, where there's some income requirements and asset requirements. And we're talking that now on the table, we have a potential for a transfer of asset penalty.
John
That's right.
Lisa
Okay. Well, you know what we're gonna take a break and then when we come back from our break, we're gonna get into the details of how this transfer of asset penalty relating to veterans benefits may impact you.
Lisa
Welcome back, everyone, to Aging Insight. I'm Lisa Shoalmire and I'm here with John Ross. And today we're talking about a topic we've talked about before, veterans benefits which may be available to a wartime veteran, or a surviving spouse of a wartime veteran. But those benefits which can bring in some monthly income to a person who needs some assistance. There's some requirements that are changing about that benefit since we last visited with you about it. So, John, when we went to the break we were talking about some of those changes. So you were mentioning the term "transfer of asset penalty" and that's certainly not something we've heard before connected with a veterans benefit, this Aid & Attendance benefit. Explain what that's about.
John
Right. So what we're talking about in this situation, is the idea that if you have given away assets either by a direct transfer, by placing those assets in trust, or by taking those assets and putting them in some sort of insurance product like an annuity, that if you have done some of those things within a certain period of time, prior to applying for these type of veterans benefits, that there will be a period of time where the VA benefit would not be available to you. And the rules are not very clear yet. Again, this is pending legislation, but Lisa and I participate in a lot of national conferences and we talk to lots of elder law attorneys around the country, many of which are heavily involved in lobbying efforts related to these and the general consensus is that this legislation is likely going to pass. Now, the exact form of it, we're not sure just yet, of course, we'll get back to you with that when we have it. But the fact that this is pending, it has... My understanding, is that it has passed the House of Representatives. It's headed on to the Senate. And so let me give you an idea. Let's say that a veteran had a home and the veteran had decided at some point... Maybe he had heard some rumors that if he ever went to the nursing home, he was gonna lose that house.
John
Well, if you've ever watched this show before, you know that if you go to the nursing home they're not going to take a house. That doesn't mean you don't need to protect that house, but the idea that if you go to the nursing home, they're going to take your house is just not right. There are ways that you can protect that without just giving it away, but yet, these rumors persist. And so here a veteran, having heard these rumors, thinks that the best idea is to put that house in his son's name, and then maybe a year later, he realizes, "Uh oh, I've got some extra expenses and I could use some VA benefits to help cover these expenses." and then applies to the VA.
John
The VA is gonna take the amount of that gift. So in this case, the value of the home. And they're gonna divide it by the amount of benefits that he might have received. And so let's say that he could get benefits at $3,000 a month and he gave away a house that was worth, I don't know, $90,000. Well, if we divide one into the other, we get like... What is that? 30,000? Something like that. Anyway, they're gonna use these figures to say, "Okay, well, we're gonna cut the first, say, 30,000 worth of your benefits," which could be one and a half to two years' worth of benefits, "and then we'll start paying," and so that's the idea, that if you've given away assets, there will be a period of time where they will not pay for you because of this transfer.
Lisa
Well and you know, the problem with this comes up in that, people so often don't realize that this transfer penalty may be out there, and so they give away an asset thinking that they are passing on their legacy to that next generation, thinking that, "My children could better use my nest egg and my savings to buy a home, or start a business, or pay their own bills." And so those gifts are made with honorable intentions, and not just in a fashion to qualify for benefits, but then the very harsh result is that a benefit that a person would otherwise receive is not available to them, at least for a time period, based on the value of the gift, or based on the value of the transfer.
John
That's right. Now, again, we mentioned that there are some of these things that we just don't know the exact details yet. These are still coming to light. In a Medicaid concept, Medicaid also has a transfer penalty, but there are a number of exceptions to that transfer penalty. For example, you can transfer assets to a child who is disabled, you can transfer assets to any person who is both disabled and under the age of 65 if you do it correctly. So, even under the Medicaid rules, which does have a transfer penalty, there are some exceptions. Whether or not there will be any exceptions related to the VA is yet to be seen.
John
The other thing under Medicaid rules is that if you've made a gift that creates a penalty, but the person you made that gift to gives it back, it's as if the penalty never happened, it's as if that transfer never happened. So, we mentioned giving away a house, well, you can have a house and still qualify for Medicaid. So, if I had given my house to somebody and then a year later realized I needed Medicaid, that person could just put that house back in my name, and it's as if that transfer never occurred. Again, the problem is we don't know what's gonna happen with the VA, we don't know if they're gonna have exceptions to some of these rules, we don't know exactly how these penalties are gonna be calculated, and so that kind of... What that means to you is the idea of planning ahead. We know what the rules are now, and since we don't know what the rules are in the future, this is particularly important to look at your situation and determine whether or not you're entitled to some of these benefits and, if so, things that you might need to do now to get ready for that in the future.
Lisa
Well, you know, that's right. So bottom line is if you are a veteran, or you are a surviving spouse of a wartime veteran, your husband may have passed, husband or wife may have passed many years ago, but as a surviving spouse of a wartime veteran, you may have a benefit available to you, and with this rule and this new legislation pending, now is a good time to really dig into this benefit just to get informed about what it's about, what the qualifications are. It may not be a benefit that you need right now or in the near future, but, again, a little bit of extra income each month certainly goes a long way toward staying in your home, not being a burden on your friends and family, and having enough money to pay for yourself through your retirement years, and this is just an excellent avenue to assist with that, but you need to be informed. So, contact an elder law attorney, contact your VA service officer in your county, contact your veteran service organization, such as the VFW, they also have people in their organizations that have information about the current benefit. And John, what I understand is that they're thinking maybe this fall, this autumn, this September, if they can get Congress to do anything that is about when they're expecting the legislation to pass, is that what you understand?
John
That's also what I understand and when it comes to planning ahead, it's so easy to put that off, but this is one of those situations where we certainly would encourage you to do some things right now. And what we're gonna do is we're gonna take one more break and when we come back from the break, we're gonna give you an idea of who ought to be thinking about this and who ought to be doing some planning right now, so will see you in just a second.
John
Welcome back to Aging Insight, and today we've been talking about veterans benefits, in particular, the Veterans Aid & Attendance benefit. And this is a non-service-connected, need-based benefit that is available to veterans who served during a period of war, and the surviving spouses of those veterans. And we've been talking about the fact that there're some legislation changes coming down the road that is going to impact people who might, at some point in time in the future, need this benefit. And so, I think what we first need to do is say, "Okay, who needs to be looking ahead and figuring out where they sit with this?" I guess the first thing is, "Would you ever be qualified for it?"
Lisa
Well, alright. This is a benefit that's available to wartime veterans and John in our practice and the years we've been doing this, we're seeing fewer and fewer actual World War II veterans, those gentlemen are leaving us and passing on but there's still lot of spouses of that Word War II veteran out there as well as people who served in subsequent wars and conflicts. And so the first thing you need to do is check to see if your service or your deceased spouse's military service occurred during one of the declared periods of war.
John
Right. And so all you had to do was have one day of active duty during a designated period of war. One day between X date and Y date. You didn't have to be in combat, you didn't have to be overseas, you just had to be on active duty during a period of war. If you meet that or you are the surviving spouse of somebody who meets that, and this is where a lot of people have some misinformation. You did not have to be married to the veteran while they were in the service, you just had to have been married to that veteran for at least one year, married to the veteran at the time of their death, and then not remarried. If you remarry or if you have divorced the veteran, if you divorce the veteran, you divorce the VA. If you remarry, you also lose those benefits unless, of course...
Lisa
You remarry a veteran.
John
That's right.
Lisa
It's a veteran.
John
And in which case if you stay married to that veterans for at least one year you're back in. So, it doesn't matter when you were married to him as long as you were married to him for one year, married to him at the time of their death. Now, if you are one of these people, again, your entitlement to this benefit depends on your income and your assets. And given the changes that are coming, there may be things that you need to do to protect your needed resources. For example, if you owned a rent house, if you own some farmland or some timber interests or some mineral rights, all of these things are things that could impact your eligibility for these benefits, and yet when it comes down to it, half grown pine trees are not gonna help pay for your care at home.
John
And so, here's an asset that could keep you from getting the benefit, but also can't provide for your care. And so, trying to figure out one, are you even eligible for this type of benefit? But if you could be, are there things that you need to do now in order to protect the things that mean something to you. Your assets, inherited property, your savings, those sort of things because the fact is with some of these changes, some of the tools that would be available to you today are not going to be there, and in a couple of weeks, a couple of months, whenever they get around of passing this legislation. So what we need you to do, is to look at your situation and say, "Okay, you know what? I think I am potentially eligible for this. What do I need to do given my situation?"
Lisa
That's right. It's all very unique, it's very tailored to each person's individual circumstance, so it's hard for us to say with a broad stroke that this benefit's definitely available to you. You need to check it out for yourself.
John
That's right. And when you go about checking this out, get good advice. If you're talking to somebody about veterans benefits, they should be either a VA service officer. So for example, in our area, we have Mr. Harmon down at the Miller County Courthouse, and we have Mr. Kunkel who's up there at the New Boston Courthouse. They're there to help with VA benefits. If you're not talking to one of them, you need to be talking to somebody who is an accredited VA attorney. Not any old attorney, an accredited VA attorney, and certainly not an insurance agent. If somebody's trying to sell you insurance to get you veterans benefits, you should turn around and walk away. You're talking to the wrong person.
Lisa
That's right, and while we're on the topic of veterans benefits today, there was one thing I wanted to mention, John. And that has to do with the lot of our Vietnam war veterans. This generations, that baby boom generation, they're hitting 65, 68, 70 years old, and they're having a lot of... They may be aging and having some issues related to that. But if we have any Vietnam war veterans out there, you also need to take a special look at benefits you may qualify for, because those Vietnam area vets, there's a lot of special provisions for those veterans.
John
Well, and in fact, there has also been some legislation particularly related to certain diseases that they have determined may come from Agent Orange exposure. And so, you might be having heart trouble, you might be having diabetes, or you might have the first signs of Parkinson's, or who knows what it is. And you might not necessarily think that that's related to that service, but it could be. And so, even if you are... You don't need these need-based benefits, there may be other service-connected benefits. So, regardless, if you're a veteran out there, stay on top of it and check these things out to make sure.
Lisa
Oh, and one more point. People have heard horror stories about dealing with the Veterans Administration, and I will say with these non-service-connected benefits like aid and attendance, the processing times are a lot quicker than you think. So, don't let dealing with the VA scare you away from looking into the benefit.
John
That's right. Well, once again, you've about reached the end of another episode of Aging Insight. We want you to ask us if you ever have any questions, you can find us on Facebook at facebook.com/aginginsight. And you can find me on Twitter @TXKelderlaw, that's my handle and we will see you next time on Aging Insight.
Lisa
Bye-bye.
John
Bye.

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