There are a lot of people out there offering their services to help people qualify for VA pension benefits (most often “aid and attendance” benefits). Your choice of who to refer someone to assist them with that important process can have far-reaching financial consequences. Here are nine things you need to consider before referring someone for assistance in planning and applying for VA benefits.
1. The Department of Veterans Affairs is engaged in an active effort to crack down on individuals employed by private companies who claim to help veterans and their dependents apply for VA benefits. These individuals lead claimants and facilities to believe they have special knowledge of VA laws and can maximize claimants’ entitlement to VA benefits, and often give claimants the impression they are employed by or connected to the VA. If you encounter anything of that sort, you’re probably best to run, not walk, away.
2. If a claim for benefits is denied or only partially allowed, and an appeal is needed, ONLY a licensed, VA accredited attorney or a VA accredited claims representative (a list of those can be accessed on the General Counsel’s webpage at www.va.gov.) can represent someone before the Department of Veterans Affairs. Anyone else (including a family member) can only prepare a benefit claim for one veteran on a one-time basis. One quick assessment tool for determining whether someone who claims that they can help with the VA planning and application process is someone who can assist through the entire process, and help get past any problems that may come up, is to ask that person “Are you either a VA-accredited attorney or a VA-accredited claims representative, and can that be verified through the VA’s web site?” If the answer is “No,” anything after that is basically an excuse or an effort to skirt the critical question. The bottom line: No means No, and that should be your answer, too.
3. Anyone who suggests they are providing a great courtesy by filing a VA benefits application for free, or directs you to someone who will help file it for free, is misleading you. It is against the law to charge for filing a VA benefits application. However, an attorney can appropriately charge fees for assisting a client with legal planning toward establishing eligibility for VA or other benefits and for preparing legal documents utilized to carry out that planning.
4. Because attorneys are the only ones who can properly charge for legal advice and planning that will enable you to establish eligibility for VA benefits, any non-attorney who offers assistance can only make money by selling something. Usually what they propose to sell are financial products, most often annuities. Although annuities, like any other forms of investment, are appropriate for some people under certain circumstances, it is absolutely not necessary for anyone to purchase an annuity in order to establish eligibility for VA benefits. In this situation as in any other, a competent and scrupulous investment advisor should consider all possible investment vehicles and assist in choosing the one or ones that are most suitable to each situation. Further, in many situations there is no need to change an investment structure or purchase new investments. If someone already has an investment advisor they trust, the advisor can most likely assist in the purchase of any new investments that may, in a given case, be helpful toward best carrying out the planning.
5. Any annuity salesperson who leads you to believe that there are no costs associated with a purchase of an annuity is misleading you. Insurance producers are paid commissions, in some cases as high as 8-10% of the amount you invest, to sell an annuity. While there can be some legitimate charges associated with the purchase of investments, someone who sells a high-commission annuity that isn’t really benefitting the person who bought it – that person is making a hefty profit.
6. Any gifts or other transfers of assets made for the purpose of establishing eligibility for VA benefits can cause ineligibility for Medicaid nursing home benefits that may be needed later. For most people, the maximum monthly VA benefit isn’t enough to enable them to cover nursing home costs. Since many folks with care needs will end up needing nursing home care, planning that focuses exclusively on VA benefits can turn out to be a “quick fix” that causes costly and serious problems later on.
7. A competent elder law attorney who has a close working knowledge of the Medicaid eligibility laws and regulations, as well as those of the VA, can assess each family’s situation. An attorney can help develop a plan that looks at the “big picture” of evolving health care needs and enables one to qualify for VA and/or Medicaid benefits in a way that will do the best job of preserving the most assets in the long run, and not temporarily “fix” one problem in a way that fails to address, or can even cause, a larger problem later.
8. The protection available if the person who advises a resident about establishing eligibility for VA benefits gives bad advice that causes problems in establishing eligibility for those benefits or in later establishing eligibility for Medicaid nursing home benefits should be a major concern when referring someone. Before agreeing to work with anyone, ask for a written assurance that the person carries professional liability insurance that will protect against those risks, and make sure the assurance isn’t limited by a disclaimer that, since the person is only helping with VA benefits planning, the protection isn’t there if the planning later causes otherwise avoidable problems in establishing Medicaid eligibility.
9. An assisted living facility that refers a current or prospective resident for VA planning advice that ends up causing them financial harm can be held legally responsible for the resulting financial damages, including particularly nursing home costs they have to pay out of pocket if their eligibility for Medicaid is later denied or delayed as a result of planning that failed to properly account for their foreseeable later need to transition to nursing home care.
