VA Penalizes Veterans With New Rules — Making Lemonade Out of Lemons

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VA Pension Benefits are cash payments available to some wartime Veterans and their surviving spouses who are disabled and/or have additional medical needs. The Department of Veterans Affairs (VA)  recently set forth new eligibility requirements for applying. Those new rules went into effect October 18, 2018.   Although the rule changes penalize veterans by making eligibility and the concomitant estate planning more difficult, we are nonetheless taking an optimistic approach. We intend to make lemonade out of the lemons our veterans have been served.

VA Pension benefits are “needs-based” benefits. Before these new rules were made, the VA offered little guidance on how they determined whether an applicant was “in need” of the benefits.  There were vague definitions and limited explanations of who would qualify. Thish led to confusion among applicants and inconsistent determinations of eligibility.  However, one good thing that has come out of the change is that there are now clear rules for eligibility. Thus, elder law VA accredited attorneys can better advise their clients and their families. This upholds the integrity and consistency of the pension program.

In addition to the minimum active duty, wartime service, and age or disability requirements, there is now a bright-line rule regarding the net worth of an applicant. This amount is currently set at $123,600.00 (for 2018). The amount will increase annually. When calculating the net worth amount, assets are combined with annual income. (The applicant’s home is usually not included in this calculation.) Out-of-pocket medical expenses can reduce income, thus helping applicants qualify for the highest level of benefit.  Nonetheless, if the claimant’s net worth exceeds this threshold, an elder law lawyer can often utilize certain legal strategies to get the calculation within the allowed range.

Another issue with the new rules is that any asset that was transferred for less than fair market value during the 36-month period immediately preceding the application will result in a penalty of ineligibility of up to five years.  Of course, there are exceptions to this rule, and elder law attorneys, accredited by the VA, can often employ strategies to legally cure or avoid the penalty.

As the rules were aimed at stopping pension poachers (financial advisors and others going around attempting to sell annuities to veterans to try to qualify them for pension benefits), there are other provisions of the new rules that apply to annuities and other financial instruments. Accordingly, before investing in an annuity or other asset that produces income, be sure to contact our office to discuss the possible ramifications of that investment on VA pension benefits.

Although the new rules make it more difficult for many wartime veterans to qualify for the benefits they deserve, the rules do provide more certainty.  Give us a call if you would like to talk further about the changes, or to explore whether you or a loved one may qualify. We are here to serve those who have served.

Add Goff, VA Accredited Elder Law Attorney

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The Pitfalls of the Do It Yourself Divorce Part #2

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This post is the second post in a series where we alert you to the pitfalls of the Do It Yourself divorce.

Pitfall #2  Utilizing forms drafted by non-lawyers.

You may have seen those creative entrepreneurs marketing their divorce document preparation services on social media pages like Facebook.  “Save money!  No attorney needed!  Let me draft your divorce documents for you!”  Just like the problems with internet forms (see Pitfall #1) you risk an invalid divorce if those forms are incorrect. In addition,  forms created by a non-lawyer may not operate the way you thought they were going to, or meet the technical requirements of the statutes.

The Risk

Also, there is much more to a divorce than simply filling out documents and filing them with a court.  You need to know the implications of the documents your sign and file.  Do you understand your rights and obligations under the law?  Are you utilizing the correct process for your situation?  The process your friendly document preparer choses to use may not be the right one for your situation.  And by using one process you may be losing the benefits of another process.

For example, we recently represented a client who had been told to wait to file for divorce until she could utilize the quick process.  By doing so, she lost out on a large sum of money she was entitled as support under the  more complicated process.  She didn’t know because her non-lawyer friend didn’t know.  The money she saved by not getting legal counsel at the beginning of the case is very small in comparison to the amount of money she lost by not utilizing the more “expensive” procedure in the beginning.   Her opportunity is gone and we can’t bring it back.

In another example, a client almost ended up with an invalid divorce because he thought he could “fudge” on some facts.   His non-lawyer preparation person did not understand the importance of the details of the divorce, and nearly caused a disaster.

Non-lawyers Practicing Law

Not only is it risky to use a non-lawyer to draft legal documents, the non-lawyer is practicing law without a license punishable by up to 2 years in prison and a fine.  You have a right to prepare your own legal documents and make your own mistakes. However, a non-lawyer does not have the right to prepare legal documents for you.  If they say they do, they clearly do not understand the law and that should make you hesitate in accepting their help.

Avoid The Risk

Don’t risk a disaster.  Instead, hire an experienced family law lawyer to protect your interests and make sure your divorce is valid.  Shelley Goff at Goff and Goff Attorneys has been practicing family law for 28 years.  Call us. We can help you navigate the process as smoothly as possible.  318-255-1760.

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Recognizing and Reporting Elder Abuse

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What is Elder Abuse?

Many seniors are subjected to elder abuse every day. Tragically, the abuse often goes unreported and the abuser goes unpunished. Before such abuse can be reported, it has to be recognized. Elder abuse is a problem that takes many forms. Elder abuse may take the form of physical abuse, emotional abuse, simple neglect, and financial exploitation. 

Physical abuse is often the most obvious and easy to spot. Physical abuse to the elderly would include the obvious things such as hitting, striking, beating, kicking, and using excessive force. However, physical abuse may also include the overuse of restraints or drugs. 

Emotional or psychological abuse can be anything that causes emotional pain or distress.  It often takes the form of verbal assaults, intimidation, isolation, humiliation, and harassment.

Neglect is when a caregiver fails to provide the necessary care for the senior citizen under their care. (In contrast, self-neglect is when a senior citizen who is mentally competent refuses to care for their own needs and causes harm to themselves.)

Financial exploitation is yet another form of elder abuse.  Many have heard of con artists and scammers taking advantage of the elderly through phishing scams, unsolicited phone calls, and the like. However, many do not know that financial exploitation is most commonly  committed by family members or caregivers. 

Reporting Suspected Abuse 

Adult Protective Services (APS) is often the first to receive reports of or to respond to reports of elder abuse. Their job is to provide for the safety, health, and well-being of elderly and vulnerable adults.  The law requires those who work with senior citizens in various capacities to report to APS if they suspect elder abuse. When APS receives reports of abuse or neglect, they have several possible actions or interventions. They are responsible for receiving and investigating reports of elder abuse. They then must evaluate the victim’s risks and assess the victim’s ability to understand their risk and give informed consent. The APS worker can then develop a case plan for the abused elder. Once a case plan has been decided, the case worker can arrange for necessary care, medical attention, and legal consultation. Once this is done Adult Protective Services then monitors the services and evaluates the case.

More serious cases of abuse may be reported directly to police. If a senior is in immediate danger, this may be the best course of action.

The internet has many websites that provide information on warning signs of potential physical abuse, emotional/psychological abuse, sexual abuse, neglect, and financial abuse. If you have a loved one who is a senior citizen, it is important to know the warning signs for abuse. It is also key to stay involved with the caregivers and to make regular visits to check on the care of your senior loved one. The National Adult Protective Services Association, https://www.napsa-now.org/get-informed/ , has important information on different types of abuse, as well as ways to get help in any state

If you have any questions about something you have read or would like additional information, please feel free to contact us.

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Ruston Elder Law Attorney, Add Goff.

The Pitfalls of the Do It Yourself Divorce Part #3

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This post is the third post in a series where we alert you to the pitfalls of the Do It Yourself divorce.

Pitfall #3 Failure to understand court procedure.

Louisiana procedure is technical and not intuitive.  Lawyers are required to take classes in law school to prepare them for courtroom procedure because courtroom  procedure is complex.  Not only does each state have its own rules for courtroom procedure, nearly district within Louisiana has its own “local rules.” To add more to the mix,  each judge has his or her way of doing things.  You need to know all three sets of rules to be successful in court.

The Risks

If you don’t know and follow the rule, you can not show the court your side of the case. For example, you want the court to consider a document you brought with you.   But, if you don’t know the rules of evidence, the court may decline to consider your document. Perhaps you didn’t “lay foundation”  or you didn’t “authenticate” or the other side objects.   You may miss deadlines related to your case resulting in your case being dismissed.

A court proceeding is no place to wing it. You will be spending hundreds of dollars on court fees with our without an attorney.   Your will have wasted that money if your case is thrown out or your claims denied.  If you don’t like the outcome, you will probably be stuck with it.  Appeals are very expensive and winning an appeal is not easy.  The best place to win your case is in the trial court, not the appeals court.

We recently spoke with a woman who represented herself in the child custody phase of her divorce.  While she had a strong case, she lost custody of her kids.   She lost because she did not understand how to get her evidence before the court for consideration. The court made the decision without her evidence and awarded custody of the children to the husband. It will be very difficult and expensive change custody now.

Don’t risk a disaster.  Instead, hire an experienced family law lawyer to protect your interests and make sure your divorce is valid.  Shelley Goff at Goff and Goff Attorneys has been practicing family law for 28 years.  Call us. We can help you navigate the process as smoothly as possible.  318-255-1760.