Martinson & Beason, P.C.
Non-Service Connected Pension (Aid & Attendance)
The Department of Veterans Affairs offers a special pension that is largely unknown to America’s Veterans and their family members. The VA Non-Service Connected Pension, more commonly known as Aid & Attendance is a medical expense reimbursement program wherein war-time Veterans and their surviving dependents can receive tax-free pension payments for unreimbursed medical expenses incurred. This special pension providing tax-free payments to Veterans and their surviving spouses who require certain types of assistance or custodial care is comprised of three pension levels: Base Pension, Housebound Pension, and Aid & Attendance.
The Base Pension is a strictly income-based benefit similar to Supplemental Security Income (SSI) and does not actually require a custodial care need. The Housebound Pension is designed for Veterans and their surviving dependents who are disabled and are substantially confined to their home due to that disability. The Aid & Attendance Pension is designed for Veterans and their surviving dependents receiving long-term custodial care in a nursing home setting but can help pay for care in the home, assisted-living facility, or nursing home. This important benefit is overlooked by many families with Veterans or surviving spouses who need additional monies to help care for ailing parents or loved ones. This is a “pension benefit” and is not dependent upon service-related injuries for compensation.
These monthly, tax-free benefits can be used to pay family members, other than a spouse, to provide skilled or un-skilled nursing care to a Veteran or surviving spouse in need of custodial care.
Eligibility Factors:
Wartime Veteran
In order to qualify for this pension benefit a claimant must be either a wartime Veteran or a surviving dependent of a wartime Veteran. Specifically, a Veteran (alive or deceased) must have served 90 consecutive days on Active Duty with at least one day of service occurring during a period of war or hostilities. It is important to note that a Veteran did not have to deploy to a combat zone. The finance clerk’s service at Redstone Arsenal or Ft. Benning, GA who never deployed counts just as much as the combat infantryman’s service at Normandy, Bastogne, Iwo Jima or the Chosin Reservoir. These qualifying periods of war are listed at 38 C.F.R. §3.2.
Disabled
In order to qualify for this pension benefit a claimant must be deemed “disabled.” Fortunately, under VA regulations any claimant 65 years of age or older is presumed disabled. However, the benefit is not automatic to America’s senior Veterans. A claimant must also show a medical need.
Medical Need
A Veteran or their surviving spouse can establish entitlement via a medical need by showing that the claimant is unable to perform at least two Activities of Daily Living (ADLs) such as eating, bathing, dressing, toileting or incontinence training, transferring. Stated differently, if the claimant is unable to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; in frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. Entitlement to the benefit can be shown if the claimant is blind, or under full-time nursing care because of mental or physical incapacity.
Financial Need (Income & Asset Based)
To qualify for Aid & Attendance a claimant must meet certain financial criteria in addition to the health criteria listed above. The VA examines the claimant’s monthly income and assets to determine whether the claimant is “too rich” for receipt of Aid & Attendance. If a person pays a caregiver such as a nurse’s aide, or they pay an assisted-living facility, those monthly expenses can impact a person’s monthly income, causing a monthly shortfall. These necessary expenditures can help a claimant meet the income level criteria to qualify for Aid & Attendance.
Finally, if a Veteran or their surviving dependents have assets above a certain limit[1] they may be ineligible for Aid & Attendance. While VA actually does not have written asset threshold policy it is fairly safe to say that if a Veteran or their surviving dependents own more than $80,000 in non-exempt assets (excluding their home, family care, and personal items used on a regular basis such as clothing) then the claimant will likely be ineligible for Aid & Attendance. Examples of non-exempt assets include: cash, checking & savings accounts, retirement accounts, stocks, bonds, business interests, second home, and cash value of life insurance policies.
If a Veteran or their surviving dependents have assets above a certain limit they are allowed to place those certain trusts such as a Veteran Asset Protection Trust and/or financial products such as annuities in order to have these assets sheltered. Proper asset sheltering for Aid & Attendance should be completed under the supervision of an accredited VA attorney.[2]
Under current VA regulations, this sheltering does not have a penalty or “look-back period” associated with it. However, VA has proposed a 3-year look back period for non-service connected pension benefit eligibility. The proposed changes are listed in the Federal Register here.
The proposed rule seeks to impose a 3-year look back period that would operate similar to Medicaid’s five (5) year look-back or “claw back period.” This 3-year look back period would penalize any transfer of property for less than fair market value. Accordingly, a Veteran or surviving spouse would not be permitted to transfer all of their property to a family member or an irrevocable trust on the eve of entering a nursing home and qualify for the Aid & Attendance benefit. The period for public comment to this proposed rule ends on March 24, 2015. Families of Veterans can begin planning now to avoid any transfer penalties stemming from the impending 3-year look back period before it takes effect.
If you or a loved one is concerned about funding long-term care costs and want to learn more about paying for nursing care with Veterans Benefits contact the legal professionals of Martinson & Beason, P.C. at 256-533-1667.
[1] The VA uses a formula based on the claimant’s assets, cost of unreimbursed medical expenses, and claimant’s life expectancy.
[2] To find a VA-accredited attorney visit the VA website at: http://www.va.gov/ogc/apps/accreditation/
