How Do I Qualify for VA Aid and Attendance These Days?

In October of 2018, the VA released new regulations that make it more difficult to qualify for the VA Aid and Attendance Pension.  These new regulations provide new rules regarding an applicant’s net worth and provide new Medicaid-like transfer penalties.  Because of these new regulations, many Veterans and their spouses will now need to pre-plan if they want to take advantage of the additional monthly income in the future.

COUNTABLE ASSETS

For 2022, VA’s asset limit is $137,400.  This means that anyone with more than this amount in assets other than their home, will need to do planning before they can become eligible for the benefit. 

THE PRINCIPAL RESIDENCE

The Principal Residence is still considered a non-countable asset for VA purposes.  However, the new VA rules impose a 2-acre limit on the size of the property.   So, if an applicant’s home sits on a farm or plot of land larger than 2 acres, the extra land would be included in the asset calculation “unless the additional acreage is not marketable.”   Examples that could cause the additional acreage to be unmarketable are properties that are only slightly more than 2 acres, properties that are surrounded by other owners and therefore inaccessible, or properties that are subject to zoning limits that could frustrate a sale.

ASSET TRANSFERS AND THE 3 YEAR LOOK-BACK!

Old Rule:  Under the old VA rules, there was no look-back period.  This meant that clients could move assets into an Irrevocable Trust, in which they pick their child or trusted friend to be the trustee and in charge of the money, and become asset qualified for VA benefits the next day with no penalty.

New Rule:  The new VA rules impose a 3 year look-back and transfer penalties.  Applicants will have to disclose all financial transactions in which an asset was transferred and the applicant did not receive fair market value in return within the 3 years prior to the application. Any asset transfers made prior to October 18, 2018 will not be penalized.  Any asset transfers made after October 18, 2018, will be assessed a transfer penalty, meaning a period of ineligibility, based on the amount of assets transferred. Now, this penalty will only apply to assets that are transferred in excess of the asset limit.

WHAT DO THE NEW RULES MEAN FOR IRREVOCABLE TRUSTS?

For years advisors have been doing VA planning with trusts to help people qualify for benefits.  Clients were able to create an Irrevocable Trust and move assets into it.  The difference now is that you must do this trust 3 years prior to needing the VA benefit.  For so long, applicants were able to wait until the need arose, create the trust, move money, and apply.  Those days are gone.  The new regulations will require you to create the trust, move the money, let it sit there for 3 years, and then apply for benefits.  Therefore, planning with Irrevocable Trusts still exist; however, applicants that want to take advantage of the VA benefits will need to do it sooner than later.

OTHER CHANGES – MEDICAL EXPENSES

In order to qualify for the Aid and Attendance pension, in addition to meeting the asset limits spelled out above, an applicant must show that they need help with at least two activities of daily living (ADLs), which the VA previously defined as “bathing/showering, dressing, eating, transferring from bed or chair, and toileting.”  Assistance with two or more ADLs constitutes needing custodial care in the VA’s eyes.  Another positive change is that in the new regulations, VA has added assistance with “ambulating within the home or living area” as an approved ADL.

Additionally, VA has expanded the definition of custodial care to include “supervision because an individual with a physical, mental, developmental, or cognitive disorder requires care or assistance on a regular basis to protect the individual from hazards or dangers incident to his or her daily environment.”  This means that an applicant that has dementia but can perform all but one of their ADLs but requires constant supervision can now qualify for the benefits when they could not before.  For example, so many times we have a client that needs to be in the protected environment, but within that protected environment is still able to shower, dress, eat, and walk down to meals, but because of their dementia cannot live at home.  Now they too are able to qualify for the benefits.

The VA defines Instrumental Activities of Daily Living (IADLs) as tasks that a person must be able to complete without assistance in order to live independently.  Examples of these are shopping, managing finances, meal preparation, handling medications, housekeeping, laundering, making telephone calls, and transportation.  These tasks are not considered medically necessary to the VA and are generally not considered deductible medical expenses.  However, many times the line between ADLs and IADLs can be very blurry.  Under the new VA rules, if an applicant is received custodial care from a provider or facility, IADLs can be added as a deductible medical expense.

TAKE AWAY

For many years, VA Benefits have helped our client tremendously in planning for their long-term care needs.  These benefits have made the difference between being able to afford an Independent/Assisted Living instead of a long-term nursing home.  If you have a family member or friend that is a wartime veteran and is beginning to decline, you should consider

VA benefits can be confusing and difficult to navigate.  The attorneys at SSR Law Office are trusted Estate Planning and Elder Law attorneys and can help explain and maximize any VA benefits you may be entitled to in the future.  Call us today at (586) 239-0871 to schedule a consultation to discuss your family’s options.