Walnut Creek Elder Law Blog

I always ask my clients if they are veterans, so that we can talk about planning for the VA Aid & Attendance Pension Benefit. An older couple came to see me about Medi-Cal planning, and the husband told me that he was in the Navy during WWII, stationed in San Diego. The wife told me that she is not a veteran, but she asked me if I have ever heard of Rosie the Riveter. I said yes, of course, and she said that was her! She admitted though that she was not the famous Rosie on the posters. She told me that she worked for an aircraft company in Southern California during WWII, and worked her way up to an inspector of electrical wiring for military aircraft.

The husband could of course be eligible for the Aid and Attendance Pension Benefit. In addition, if he were to pass away, his wife could be eligible for this benefit, as the surviving spouse of a war time veteran.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young, who also advises on Medi-Cal qualification and asset protection, serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

The California Welfare and Institutions Code Section 15610.07 defines elder abuse as follows:

“Abuse of an elder or a dependent adult” means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

In addition, the California Penal Code, Section 368 provides for criminal penalties for elder abuse, against someone who willfully causes or permits an elder to suffer, or inflicts unjustifiable physical pain or mental suffering on the older person.

Examples of elder abuse could include physical injury, broken bones, unusual bruises and, bedsores. In addition, social isolation, abandonment and financial abuse can be forms of elder abuse.

Persons who provide care for elders, whether licensed or not, are mandated to report elder abuse.  In addition, any private citizen can report elder abuse.  You can report abuse by calling (APS) Adult Protective Services or by calling 911.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law and asset protection attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. His practice includes Medi-Cal qualification for nursing homes, elder law, asset protection and estate planning for seniors.

In the seminars presented by Walnut Creek elder law attorney Michael J. Young, www.WalnutCreekElderLaw.com, he talks about the Veterans Affairs Aid & Attendance Improved Pension Benefit, which is paid to wartime veterans or to their surviving spouses. The program is asset and income based, as is Medi-Cal. However, the two programs have different qualification rules. The VA program is often utilized to pay for in-home care, assisted living facilities and board and care facilities. Medi-Cal is most often used to pay for skilled nursing facilities.

The VA program is “non-service connected,” which means that the disability does not necessarily result from being in the service. If you are over age 65, you are deemed to be “disabled” by the VA, and you could be eligible for the lowest amount of the benefit. If you are also housebound, you could be eligible for the next higher amount. And, if you are also in need of help with various activities of daily living, you could be eligible for the highest amount of the benefit.

 The veteran must have been discharged from the U.S. armed forces, with anything but a dishonorable discharge. Also, the veteran must have served 90 days continuously in the military, one day of which had to be during a war time. The periods of war are as follows:

•  WWI: April 6, 1917 through November 11, 1918
• WWII: December 7, 1941 through December 31, 1946
• Korean War: June 27, 1950 through January 31, 1955
• Vietnam War: August 5, 1964 through May 7, 1975
• Persian Gulf War: August 2, 1990 and continuing

The VA application, if prepared by someone other than the veteran, must be prepared “pro bono,” that is, without charge, and by someone who is accredited by the VA. An elder law attorney who is accredited by the VA is best equipped to help you with the planning and application for the VA benefit. He would also prepare an integrated long term elder care plan for you, that would take into account all of your assets, plus the VA and Medi-Cal benefits.

 Caveat: Beware of non-attorney individuals and organizations who offer to help with the VA applications. First check to see if they are accredited by the VA, which is required by federal law.  Also know that VA applications are prepared pro bono, that is, without charge. You may be advised by an organization to gift all of your assets away in a large gift, which can create immediate eligibility for the VA program, but ineligibility for Medi-Cal for a long period of time. Medi-Cal and VA have different rules. Finally, if the person or organization who wants to help with the VA application wants to sell an annuity to you as part of the process, you most certainly should get a second opinion.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

VA BENEFITS MAY COVER THE COST OF AN ASSITED LIVING FACILITY OR IN HOME CARE

www.WalnutCreekElderLaw.com. As we discussed in previous Elder Law Today newsletters, the Veteran’s Administration provides a wonderful pension benefit for those individuals who served at least one day during a period of wartime and are now disabled due to non-service connected reasons (aging related issues,  Alzheimer’s, Parkinson’s, multiple sclerosis, and/or other physical disabilities).  This pension, referred to as “Aid and Attendance Allowance”, may pay  the long term care provided in an assisted living facility, or in-home care.  

The “Aid and Attendance” (A and A) benefit is available to a veteran who is disabled and requires the aid of another person to perform the personal functions required in everyday living.  A veteran can show they are eligible if they have a substantial need for assistance with the activities of daily living.  Such activities include bathing, dressing, meal preparation, etc.  A veteran would also qualify for this pension if they can show they need the attendance of another person in order to avoid the hazards of his or her daily environment.  The need for assistance does not have to be permanent.

 Under this program, a veteran can receive up to  $1,644.00 per month or $19,736 per year in benefits, and a widowed spouse can receive up to $1,056.00 per month of $12,681 per year in benefits.  The applicant must be “permanently and totally disabled” under the VA rules.

The vet does not need to be helpless under the rules. He only needs to show that he is in need of aid and attendance on a regular basis. Someone who is housebound or in an assisted living facility and over the age of 65 is presumed by the Veterans Administration to be in need of Aid and Attendance.

Eligibility for the program is based on the income and assets of the veteran. In determining income, deductions are allowed for unreimbursed medical expenses (UMEs). In home care workers are an allowable deduction, provided that some medical or nursing services are provided. Also, the cost of an assisted living facility, or a portion thereof, can be an allowable medical deduction against gross income. 

 In addition, a family member can provide in-home care for a veteran who is applying for aid and attendance.  In order to meet the disability criteria, the care services provided by an unlicensed relative must be prescribed by a health care professional (ex. doctor, RN, LPN or licensed physical therapist) and the professional must consult with the unlicensed relative caregiver at least once a month (in person or by telephone) to monitor the regimen.  In addition, there must be a valid care contract in place and the caregiver must be receiving no more than fair market value for services he or she is providing.

If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

 CAVEAT: When planning for this VA benefit, you should also plan for Medi-Cal benefits and coordinate all of this with your elder law estate plan at the same time. An elder law estate planning attorney, who is also accredited by the VA, is best equipped to help you with this planning. When seeking help for this VA benefit, always ask if the person helping you is accredited by the VA.  

 The following are some additional requirements for eligibility:

 a. Be a veteran who served at least 90 days of active duty.

b. At least one day of active duty had to be during wartime: WWII – 12/7/41 to 7/25/47 – Korea – 6/27/50 to 12/31/55 – Vietnam – 8/5/64 to 5/7/75;

c. Does not need to have been in combat;

d. Discharged other than dishonorably;

e. Income less than $1,644 per month, once out-of-pocket medical expenses are considered.

f. Net worth less than approximately $50,000 for singles or $80,000 for couples.

g. Gifting of assets is allowed with no look-back period, but must be coordinated with Medi-Cal planning and gifting, which does have a look-back period.

 If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

Elder Law Today is written by Michael J. Young, Attorney at Law, 1931 San Miguel Dr., Ste. 220,  Walnut Creek, CA 94596. This information is for general informational purposes only, and does not constitute legal advice. For specific questions, you should consult a qualified attorney. MIKE@WALNUTCREEKELDERLAW.COM

For additional information, such as upcoming seminars, past newsletters, and to listen to an interview with attorney Michael J. Young, visit  www.WalnutCreekElderLaw.com.

Office: (925)-256-0298

UPCOMING SEMINARS BY ELDER LAW ATTORNEY MICHAEL J. YOUNG:

Dates: Fridays, January 8 and 22, from 2:00 to 3:30 p.m. at the Law Offices of Michael J. Young, in the Channell Room. For reservations call 925-256-0298.

             For Medi-Cal eligibility, the single applicant must have no more than $2,000 in non-exempt assets in her name. If you just give away your assets, without proper planning, and you want to enter a nursing home, you may create a period of ineligibility for Med-Cal. The ineligibility period begins at the date of the transfer.

             Medi-Cal presently has a 30 month look back period, and they use a divisor of $5,698, which is known as the average private pay rate (APPR). This figure is used to determine the period of ineligibility. So for example, if you transfer $20,000 to a family member, and divide that figure by $5,698 you will have 3.5 months of ineligibility. This is rounded down to three months of ineligibility from the date of the gift. If this gift is made in November, 2009, the applicant would be ineligible for November and December of 2009, and ineligible for January, 2010. She would be eligible in February, 2010.

            If $200,000 is transferred to another individual, (divided by $5,698), 35 months of ineligibility is created. However, Medi-Cal presently has a 30 month look back period. So, after 30 months have passed from the date of this transfer, the applicant would be eligible for Medi-Cal.

             There are also acceptable and legal methods for transferring assets, among family members for instance, which create fewer months of ineligibility. An elder law attorney familiar with nursing home and Medi-Cal eligibility can advise you on these matters.

            By, Michael J. Young elder law attorney in Walnut Creek, CA.

            Mr. Young is an elder law attorney who practices in the east bay. His office is in Contra Costa County, located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA. Mr. Young has East Bay elder law clients who live in such towns as Brentwood, Antioch, Concord, Alamo, Walnut Creek, etc.  Many of his clients are concerned about how they will pay for their nursing home costs. Mr. Young prepares long term care plans for his clients, which may include utilizing Medi-Cal and the Veterans Administration Aid and Attendance Benefit for wartime veterans. www.WalnutCreekElderLaw.com  Lawyoung1@Gmail.com 925-256-0298

For Medi-Cal qualification, the community spouse (well spouse) is allowed to have $109,560 (in 2009) in non-exempt, or countable assets. This is called the Community Spouse Resource Allowance, or CSRA, which increases yearly based upon the Consumer Price Index.

Only non-exempt assets are counted for the CSRA. As a result, IRA’s in the name of the well spouse, which are exempt, are not counted. Also not counted are a car, the house, household goods and jewelry in the name of the well spouse, plus the $109,560. Once the ill spouse is eligible for Medi-Cal, any assets acquired by the well spouse will not affect eligibility of the ill spouse. So, an inheritance received by the well spouse after the ill spouse is qualified, will not affect eligibility of the ill spouse.

In addition, under California law, the well spouse can keep all of her income. In addition, she is allowed to have what is called a minimum monthly maintenance needs allowance of income (MMMNA) of $2,739. If she is under that amount, she can receive a portion of her ill spouse’s income, to bring her up to that amount. 

The impoverished spouse statutes state that if the $109,560 CSRA, and/or the $2,739 MMMNA are insufficient for the well spouse to live on, she can file for an administrative hearing or file a petition with the court to have these amounts raised.

 By Michael J. Young, elder law attorney in Contra Costa County. Our offices are located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. (925) 256-0298. Please visit our website at www.WalnutCreekElderLaw.com

 Michael J. Young, elder law attorney advises clients in Walnut Creek, as well as surrounding  towns such as Danville, Concord, Brentwood and Antioch.