Critical Update – New Veteran’s Improved Pension Rules: What It Means for U.S. Veterans & Their Families

Critical Update on New Veteran's Improved Pension Rules: What It Means for U.S. Veterans & Their Families

Many veterans and their spouses with cognitive impairment or who require assistance with their activities of daily living rely on the Veterans Improved Pension to pay for their care.  The benefit is a needs-based monthly payment as high as $1,176 per month for a surviving spouse and $2,169 monthly for a veteran in 2018. As such, the benefit is suitable to fund an assisted living co-pay, or care in the home.

Eligibility depends in part on the claimant’s net worth.  Up until October 17, 2018, prospective claimants can transfer assets to family or to a trust, without any penalty or a lookback period, unlike Medicaid.  But this will soon change.

On October 18, 2018, the old rules will sunset and new rules, which will make it more difficult for some veterans to qualify for the Improved Pension, will go into effect on the following day. As such, veterans now have a very narrow planning opportunity, but the planning window is closing fast. The new rules will bring about major changes to the eligibility rules for the Improved Pension, including:

  1. Denials to claimants with net worth exceeding the sum of $123,600. Net worth means the sum of a claimant’s or a beneficiary’s assets and annual income. If the claimant’s net worth falls below this threshold, eligibility will be feasible.
  1. Penalty periods. Penalties will now be imposed for gifts made after October 18, 2018.  A penalty period is a temporary disqualification for the Improved Pension or other applicable needs-based benefit. During the penalty period, the claimant does not receive the Improved Pension benefit. The length of the penalty period is derived from the total assets given away during the three year period running retroactively from the date of the filing of the claim, divided by the maximum annual pension rate (MAPR). The penalty may be as long as five years. Here is an example illustrating how the penalty period will be computed:

Example:

Assume that Sergeant O’Leary, an honorably discharged U.S. military veteran who served on active duty for at least 90 days during a period of wartime, owns countable assets in the sum of $130,000.

Sergeant O’Leary needs assisted living care and wants to qualify for the Improved Pension.

Sergeant O’Leary buys an irrevocable annuity on November 15, 2018, in the principal amount of $10,000.  Because the annuity is irrevocable, after the expiration of any “look see” period required by local law, Sergeant O’Leary cannot liquidate the annuity. Throughout the term of the annuity, the annuity payments made to Sergeant O’Leary will be treated as income to him in computing his net worth for the Improved Pension. See 38 C.F.R. § 3.276(a)(5)(ii).

If Sergeant O’Leary applies for the Improved Pension (or any other needs-based benefit) any time between November 15, 2018. Sergeant O’Leary’s three year lookback period for the annuity purchase begins on December 1, 2018. If Sergeant O’Leary files a claim during the three year lookback period, he will be subjected to a penalty due to the irrevocable annuity purchase.

How is the penalty computed? If, when Sergeant O’Leary purchased the annuity, the MAPR in effect was $24,000 annually, that computes to a $2,000/monthly penalty divisor.  Based on this MAPR factor, the penalty for  the irrevocable annuity is computed at 5 months ($10,000 divided by $2,000 month equals 5 months).

  1. Grandfathered transfers. Gifts made before October 18, 2018 will be grandfathered into the old rules and will not result in a penalty.
  1. Size based residential real property exemption. The primary home and up to two acres of surrounding land are disregarded from the claimant’s assets for the net worth test, regardless of value.
  1. New limitations on medical expenses deductible in computing net worth. As of October 18, 2018, only certain categories of medical expenses can be used to offset the claimant’s income for purposes of the net worth test. Expenses for unlicensed in-home care providers can no longer reduce net worth, unless the disabled individual is receiving health care or custodial care, and the payments are commensurate with the number of hours that the provider attends to the disabled person. In addition, the disabled individual must also have been awarded Aid and Attendance or is Housebound; or a physician, physician’s assistant, certified nurse practitioner, or clinical nurse specialist must have stated in writing that, due to a physical, mental, developmental, or cognitive disorder, the disabled individual requires the health care or custodial care that the in-home attendant provides.

Questions? Let Jane know.

Jane Fearn-Zimmer is an attorney at Flaster Greenberg PC that specializes in veteran affairs. She’s an accredited attorney with the U.S. Veterans Administration, the editor of the Elder Law Report, Including Special Needs Planning, a national trade journal for elder law and special needs attorneys, and is very educated on the new changes and what it means for veterans across the U.S.

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