Changes to VA Pension Rules

Catherine E. Sears, Esq.

On October 18, 2018, new rules went into effect involving VA Pension benefits, which are commonly called “Aid and Attendance” benefits.

The purpose of VA Pension is to provide financial assistance to medically-eligible veterans and their widow(er)s. Unlike Medicaid, which pays for the entire portion of an individual’s nursing home costs which the individual cannot afford to pay herself, Pension does not guarantee that the veteran will have sufficient funds to pay for a nursing home. Instead, it provides an additional source of monthly income which can then be used to help the veteran’s assets last longer in paying out-of-pocket for long-term care.

To receive Pension benefits, a veteran need not have been injured during his wartime service, but rather is currently disabled (perhaps, due to age) and in need of assistance with activities of daily living, such as bathing, toileting, or feeding oneself.  Additionally, to be eligible for VA Pension benefits, the veteran has always needed to have a low financial net worth.  In other words, the veteran must have less than a certain amount of monthly income, and less than a certain amount of accumulated assets.  If the veteran’s income exceeds the eligibility threshold but the veteran has a great deal of unreimbursed medical expenses, the VA will deduct those expenses from the veteran’s income in making its eligibility calculation.

Under the old VA rules, a veteran could, without penalty, give away as much of his accumulated assets as necessary in order to reduce his assets and become financially eligible for Pension. The assets could be given to a trustworthy child as an early inheritance or with the hope that the child would help pay for the veteran’s care by using that gifted money on the veteran’s expenses. Similarly, the assets could be transferred to an irrevocable trust or into an annuity so they were no longer within the veteran’s control (thus, making the veteran financially eligible for Pension), but would still be used for the veteran’s benefit.  Therefore, under the old rules, a veteran with substantial accumulated assets could simply transfer all of those assets away one day and qualify for Pension benefits the next day.

The new rules, however, will impose a penalty on assets which have been given away or transferred for less than their fair market value. This is intended as a way to maintain the purpose of the Pension program: to provide assistance to those who are truly financially needy. Therefore, a penalty period is imposed on veterans who have made transfers for less than the fair market value within three years of the veteran becoming eligible for Pension benefits.  The length of the penalty period is directly related to the value of assets which were given away.

This new policy impacts asset protection planning strategies, then, as a veteran or surviving spouse must now plan to make any gifts or transfers more than three years before expecting to need Pension benefits. However, though this is a new factor to consider in Pension planning, a “lookback period” and penalties on asset transfers are very familiar concepts in long-term care planning, as Medicaid has always had these rules.  Because Medicaid planning and VA Pension planning often go hand-in-hand, a long-term care planning attorney should already have considered the ramifications of making gifts and risking a penalty period when advising her clients.

The new VA Pension rules make many other changes regarding eligibility and medical expenses, but the lookback period will likely have the most significant impact on the majority of prospective VA Pension recipients. If you have previously engaged in any long-term care planning with the intention of qualifying for Pension benefits, you should talk to a VA Accredited attorney to make sure that these new rules will not impact your current plan, and to revise the plan as needed.

Tax-Free Rollovers from 529 Savings Plans to Able Accounts Now Permitted

Helena S. Mock, Esq.

In a previous blog, I wrote about the enactment of the ABLE (“Achieving a Better Life Experience”) Act, which was signed into law in 2014.  The ABLE Act is a federal law that allows states to establish a savings program for persons with disabilities.  ABLE accounts may be used to accumulate money for a disabled beneficiary.  The funds in an ABLE account can be invested and grow free from all income taxes.  The money can later be used by or for the beneficiary for purposes such as education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expenses, and other “permissible expenditures.

The ABLE account is modeled after the 529 education savings plan, which allows savings for future college expenses to grow free from income tax.  You don't get a federal income tax deduction for contributions into the plan, but the earnings on the account aren't taxed while the funds are in the program.  The custodian of the plan can also change the beneficiary or roll over the funds in the program to another plan for the same or a different beneficiary without income tax consequences.  And, distributions from the program are tax-free up to the amount of the student's "qualified higher education expenses." These include tuition (including up to $10,000 in tuition for an elementary or secondary public, private, or religious school), fees, books, supplies, and required equipment. Reasonable room and board are also qualified expenses if the student is enrolled at least half-time.

Often 529 college savings accounts are established by parents or grandparents for an infant or young child before knowing if that child will ever be able to attend college.  If that child later suffers a disability such that he will not need the funds for “higher education expenses,” what happens to the funds in the 529 account?  As mentioned, the custodian can change the beneficiary.  But that money was set aside for this child.  And, this child will have other needs. Why can’t those funds be used for her other needs?

Under the law, the distribution of funds from a 529 account for any purpose other than for qualifying expenses are taxed to the beneficiary to the extent that they represent earnings on the account. A 10% penalty tax is also imposed. However, under the Tax Cuts and Jobs Act of 2017, amounts from a 529 account can now be rolled over to an ABLE account without penalty so long as the ABLE account is owned by the designated beneficiary of the 529 account, or a member of the designated beneficiary’s family.  Not only is this useful if the beneficiary himself has become incapacitated such that he will not need the funds for educational purposes, but it is also useful if the beneficiary has completed his education and there is money left in the account which can be rolled over from the 529 account to an ABLE account for the benefit of a member of the beneficiary’s family who is blind or disabled.

Certain rules and limitations apply, and therefore you should consult a qualified special needs planning attorney to discuss your individual situation before taking any action.

The Final Moments

Teresa M. Clemons
Office Manager

Last week I lost a very special man, my father-in-law. For three days, my husband (his wonderful son) never left his side and was there when he took his last breath. Being with someone you love at the point of their death is a profound experience. At times, you feel guilty for wishing it to be over but it's an understandable response to a very stressful situation and wanting them to be at peace and comfortable.

The hearing is thought to be the last sense to go in the dying process, so never assume the person is unable to hear you. Talk as if they can hear you, even if they appear to be unconscious or restless. Our entire family spent several hours with him the day before he died. We reminisced about good times, even asked questions. Though he was non-responsive, someone would answer what they thought he would say. Assuming he could hear us, I am sure he was frustrated that he could not communicate, but at the same time was laughing inside at the responses that we were all making on his behalf. He had an oxygen mask on but a couple of times I saw him yawn and thought "maybe we're boring him!" Even when unconscious or semi-conscious, yawning is a natural response to draw more oxygen into the body.

We tried to create a soothing atmosphere by playing his favorite music, particularly older country. Finding a song from that genre on Pandora, we placed the cell phone next to him and wished he could have sung along. We all gathered around his bed and prayed when the minister arrived. The last words my husband spoke to him minutes before he died, made us believe that he really could hear us. He said, "Dad, it’s okay, we are all going to take good care of mom." And with that, he took his last breath and went home.

Using Mindfulness and Meditation to Navigate the Waters of Care-giving

Valerie M. Hollar, Paralegal

The number of Americans that are caring for an older loved one is on the rise. According to the Family Caregiver Alliance, about 34.2 million Americans have provided unpaid care to an adult age 50 or older in the last 12 months. About 15.7 million adult family caregivers care for someone who has Alzheimer's disease or dementia. Nearly 75% of all caregivers are female, around 50 years of age and these caregivers are spending around 20 hours a week providing care. With numbers like these and tasks ranging from simple grocery shopping and household chores to complicated issues dealing with finances and medical care, it is not any surprise that caregiver burnout is on the rise. Caregiver burnout is defined as a state of physical, emotional, and mental exhaustion that may show up as signs of fatigue, stress, anxiety, depression, and a general lack of self-care. 

The questions that come to mind immediately when caring for a caregiver is how do we treat this burnout state, but also what are some ways we can prevent it. My yoga teacher training points me straight to the practice of mindfulness and meditation. I personally found this practice from being a caregiver in a stressful situation. Mindfulness is the practice of paying attention to the present moment. For example, if you are feeling a sensation of overwhelming or a tightness in a part of the body, you may need to find a focus on your breath. By doing this, you are allowing the body to find a way to help itself.

So, what does this mean for a caregiver? I know, and I’m sure those reading this who are caregivers know, that just getting through a day can feel like an impossible struggle. You are busy, you have more tasks than you feel like you can complete which lead to being overwhelmed, you’re sometimes angry for having to be in this situation, you feel a sense of resentment, and it’s just plain hard. Self-care is important. While it is not always feasible to take a vacation to get away or to even get a break for yourself, it is possible to find mindfulness and meditation and use it as respite. Meditation can be done anywhere. You can literally practice it while sitting next to your loved one. 

Mindfulness and meditation have numerous benefits. Both can help to bring acceptance to feelings regarding the changes that are happening with your loved ones. Meditating on a regular basis calms the mind, which can promote a better sleep at night. It is something you can do in a short amount of time with big benefits. It can promote stronger immunity when the body is run down from the constant hustle and bustle of caring for someone else. Meditation improves concentration and focus as well as decreasing blood pressure and cholesterol levels. So not only does it improve the health of the mind, it can also improve the health of your body!  

With the popularity of meditation on the rise, your smartphone can provide a wealth of resources when it comes to these types of exercises. Several apps come ready to guide you through different meditation exercises. Some of my favorites include Calm, Headspace, and the Insight Timer. Calm offers a variety of different options with guided and unguided meditations. Headspace is narrated by a man with a lovely Australian accent and provides options for many types of meditation for stress, anxiety, confidence, etc. The insight timer app is perhaps my favorite as it offers guided meditations from many individuals with different backgrounds, unguided sessions set to sounds that soothe, and provides podcast type interviews with those that lead the meditations. No matter what you are looking for, there is a meditation app out there for you! Take the time to make mindfulness and meditation a part of your care-giving practice.  

Want to get an idea of what a meditation session is before you try an app? Check out one of my favorite simple guided meditations below. You can read through this and practice yourself, or even share with the one you are caring for and practice together. 

First, find a quiet and comfortable spot. Sitting nice and straight, feet pressing into the floor, place your hands in your lap, palms up or down, whatever is comfortable for you. Then, close your eyes or keep a soft gaze. Take a scan of your body, noticing what you are feeling in your body and what feelings are circling around in your mind. Start to focus on your breath. Feeling each inhale and exhale. As you breathe in and out, try to focus on something. Maybe thinking of a place that you feel safe and secure. Picturing that space while continuing to breathe deeply in, and deeply out, keeping the focus where you have chosen. Stay here as long as you like. When you are ready to end your meditation, come back to focusing on your breath as you scan your mind and body again. Notice how you feel. Notice what you're thinking. Repeat as often as you’d like!

For more information:

Caregiver Statistics:

https://www.caregiver.org/caregiver-statistics-demographics

Caregiver Burnout:

https://www.webmd.com/healthy-aging/caregiver-recognizing-burnout#1

Meditation Benefits Seniors and Their Caregivers:

https://www.careindeed.com/meditation-benefits-seniors-and-their-caregivers

Caregiver Meditation:

https://elizz.com/caregiver-resources/just-for-caregivers/caregiver-meditation

Meditation Apps:

Calm -  https://www.calm.com/

Headspace -  https://www.headspace.com/

Insight Timer -  https://insighttimer.com/

Or search for them in your App Store

Accepting Death While You're Still Young

Elizabeth D. Johnson
Legal Assistant 

Growing up, you never truly think about getting old - which is strange because you obviously know that people get old. Your parents are old, your grandparents are really old, some have even passed away along with the other relatives you never got to meet. For me, I never actually felt like that was going to happen to me but I do remember the shift in reality when it finally hit me...oh damn, I'm going to DIE one day?!? That sucks!

I used to have panic attacks just thinking about death until I started my current job. In short, we prepare people for death and help those whose loved ones have passed, so I either had to come to terms with it or let my boss know I'd be in the fetal position every afternoon from 12-3. So, even though I'm only 28, I have already started to accept death. Obviously, if some voodoo doctor comes along and tells me they have a concoction for everlasting life, I will for sure gulp it down like Meryl Streep in Death Becomes Her. Considering that doesn't seem to be happening any time soon, I've decided I must to come to terms with the fact that we all have to die one day, and yeah it does suck, but what can you do?

As I'm nearing the age of 30, I'm realizing just how short life can be. Some have not been as lucky as I am to live even this far, and people take life for granted every day. I still take life for granted every day. None of the trivial things should matter. What should matter is the fact that I have all of these wonderful people in my life, who care about me. I have a roof over my head and food to eat and a car that doesn't break down constantly. While the goals that I set in the past now actually have deadlines, I should feel grateful to even have goals. No one knows what happens after you die and it is up to you what you believe, but regardless you can't put things off. You are fragile, your loved ones are fragile. Tell everyone how much you love them, or how much you hate them - just tell people how you feel!

People will leave your life all the time - whether it’s a fight that wasn't worth resolving, someone moving away, or you know…dying, so it's important to remind yourself every day that you are not invincible like your 13-year-old self once thought. Work hard at making yourself happy and making the people around you happy. Go outside more, meditate, eat carbs, and try not to die yet.

Vacations Are Good For The Soul

Barbara K. Armstrong
Paralegal

Well, here we are right in the middle of summer.  Most likely a few of you have already gone on a vacation or are planning one.  Vacations are good for the soul.  Not only do they give you quality fun time with loved ones, they also rejuvenate. Who couldn’t use some rejuvenation!

Recently, my husband and I went on a three-day excursion. Granted, it wasn’t a week vacation, but it was fun. We went zip lining and horseback riding. My husband, at 72 years old, rolled down a hill for the first time in his life! He didn’t even have that on his bucket list.  We were sitting with a few other vacationers and commented on the little children rolling down the hill and how much fun that used to be.  My husband said he had never done that.   Well, the rest was history.  The guests all stood up and clapped when he reached the bottom.  Not sure if it was because he had made it or had not seriously injured himself! 

We met some special people while we were there. We spoke with a grandfather who was there with his wife, daughter, son-in-law, and grandson.  He told us that his grandson at the age of 5 years old, had already had 6 brain surgeries and although his prognosis was favorable, they were going to do as much with him and have him experience as much of life as possible. 

My point is, take some time off for yourself.   Life can fly by in an instant and it doesn’t matter if you are 5 or 72 years old.   Enjoy all moments and take that vacation whether it be a long weekend or a month.  Vacations are good for the soul!

Easy Gardening at Any Age

Teresa M. Clemons
Office Manager

Seniors don't need to have a huge yard or sprawling piece of property to enjoy the many benefits of gardening. Hundreds of plant species can thrive inside a home as long as they are properly cared for. Here are a few suggestions:

Recognizable by its long and vibrant leaves is the spider plant. There are many different types of spider plants, and they are often hung from windows so the leaves can cascade over the sides of the pots. Spider plants can thrive as long as they get a little bit of sunlight every day and are watered at least once a week. 

Very few indoor plants are as popular as the peace lily, and many cultures believe these flowers bring good luck into a home. They are also an excellent air purifier. To keep the petals and leaves healthy, they require indirect sunlight and moist potting soil at all times. 

Aloe vera is extremely easy to care for and also has the benefit of healing qualities. Many people make burn salves and topical pain relief creams from the gel inside an aloe vera plant. This plant doesn't need much water but it should be kept near a window to get as much light as possible.

Beautiful and delicious, try to plant some mint. This herb is easy to care for and as the leaves grow larger, you can pick a few off to throw in a cup of tea or ice water. 

Senior who are more interested in vibrant flowers might want to go with an African violet. These beautiful flowers vary in color depending on their location, but most petals are bright purple or blue. African violets shouldn't be watered until the soil is completely dry, and the leaves can't get wet or spotting will occur.

With some encouragement and assistance, even older adults with limited mobility can enjoy caring for indoor plants. 

Please be aware that peace lilies, aloe vera, and mint are toxic to dogs and cats.