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 someone to assist you with that important process can have far-reaching financial consequences. Here are eight things you need to consider before choosing someone to assist you 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 your claim for benefits is denied or only partially allowed, and you want to appeal, 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 you 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 tells you that he or she can help you with the VA planning and application process is someone who can see you through the entire process, and help get you 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 doing you a favor by filing your VA benefits application for free, or directing you to someone who will help you 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 your 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 you something. Usually what they propose to sell you 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 you in choosing the one or ones that are most suitable to your situation. Further, in many situations there is no need for you to change your investment structure or purchase new investments. If you already have an investment advisor you trust, that person can most likely assist you in the purchase of any new investments that may, in a given case, be helpful toward best carrying out your planning.
5. Any annuity salesperson who leads you to believe that there are no costs associated with your 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 you an annuity. While there can be some legitimate charges associated with the purchase of investments, someone who sells you a high-commission annuity you don’t need isn’t really benefitting you – that person is making a hefty profit at your expense.
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 if you need to apply for those 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 your or your loved one’s situation. An attorney can help you to develop a plan that looks at the “big picture” of evolving health care needs and enables you or your loved 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. You need to be concerned about the protection available to you if the person who advises you about establishing eligibility for VA benefits gives you bad advice that causes problems in your establishing eligibility for those benefits or in later establishing eligibility for Medicaid nursing home benefits. Before you agree to work with anyone, ask for a written assurance that the person carries professional liability insurance that will protect you against those risks, and make sure the assurance isn’t limited by a disclaimer that, since the person is only helping you with VA benefits planning, the protection isn’t there if the planning later causes otherwise avoidable problems in establishing Medicaid eligibility.