Online resource center to help you explore these key issues, and others, regarding your estate.

Practice Areas

Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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VA Pension/Aid & Attendance/Medi-Cal

Mr. Miller has been active in the area of VA Pension and Medi-Cal for well over a decade. He uses various specialized types of Trusts as well as non-trust strategies to gain eligibility for his clients and save the family money.

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Probate & Estate Administration

Mr. Miller has been settling estates (both simple and complex) for well over 40 years. The starting point is always to create a strategy to settle the estate in the most efficient manner possible with a minimum of taxes. Often times the strategy created allows the family to bypass Probate Court proceedings.

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Veterans Benefits

Veterans Aid & Attendance Benefit (Non-Service Connected Disability Pension)

How Can I Correctly Choose Help for My Application Process?–FREE REPORT

  • How long does it take to start receiving the Aid & Attendance Benefit?

From the time of filing the application with the Regional Office of the Department of Veterans Affairs it typically takes approximately two to three months to receive a response from the VA. Assuming that the application packet is complete, then one can receive the award within that time duration. However, since each VA adjudicator looks at the application somewhat differently and may want something additional or even the same information on a different form, it often takes 4-6 months to receive the award.  See the basic overview on this benefit.

  • Is the benefit retroactive?

Typically, the benefit is awarded retroactive to the first of the month following the date the application was filed. For example, if the application was filed March 26, then the “award date” would be April 1 even though approval might not occur until many months later.

  • Does the veteran/spouse have to be a resident of an Assisted Living Facility (ALF) or Skilled Nursing Facility (SNF) before making application for the benefit?

The benefit is not necessarily tied to where the applicant is residing. So if one were living at home, that person could still file. However, the benefit is tied to the applicant’s “income for veterans affairs purposes” (IVAP) which is basically a calculation of gross income minus various “medical expenses” (as defined by the VA). Medical expenses usually include the cost of the ALF or SNF. Therefore, as a practical matter, unless the applicant is already residing in an ALF or SNF, his medical expenses will be very low resulting in IVAP that usually exceeds the limit for the benefit to be approved.

When medical expenses are too low to qualify, an attorney’s assistance can be invaluable.  Often times, when the applicant is living at home, expenses can be increased for VA purposes without causing additional sums of money to be paid outside the family unit.  In this way, even applicants living at home can often be approved for the benefit.

  • Is room and board at a facility considered a medical expense in calculating income for veterans affairs purposes?

All unreimbursed fees paid to the facility for custodial care (including room and board) and medical/nursing care are typically considered medical expenses. Basically, if there is a need to live in a protected environment, the entire amount paid to the facility is a medical expense.

  • Is my home an exempt asset for the rest of my life?

If you consider your home your primary residence (even if you live in a facility), then it is typically not counted in calculating your net worth for VA purposes (i.e. exempt). However, if the home is sold, the proceeds are not considered exempt and eligibility for the benefit is typically lost. Depending on your circumstances, eligibility might be able to be regained.

  • My parent already has a Family Trust/Revocable Living Trust (RLT). Why would she need a different kind of trust now?

An RLT is neutral in its effect on eligibility for the VA benefit. Therefore, any assets held by the RLT are counted as if owned directly by the creator of the trust (the parent). If one’s net worth is too high to qualify for the benefit, one can transfer assets to a different kind of trust, a QVap Trust. Because of the manner in which the QVap trust is drafted, assets held by it are not counted as owned by the creator of the trust (the parent). The QVap trust can also retain for the family the ability to claim the $250,000 exclusion from capital gain and obtain a step up in income tax basis on the death of the parent.  See article on QVap Trust.

  • Why is it so important that we use an Accredited Individual?

VA accreditation is the only way that a consumer can be sure that the individual knows the laws and regulations that apply to the VA benefit programs. To be accredited, an attorney must periodically take a certain amount of continuing education courses covering VA benefits.  Mr. Miller is is accredited by the VA and holds accreditation number 9055.

  • Are there any fees to have you help us?

People interested in this benefit fall into two groups.

The first group is the people who have assets and income that qualify without any need for legal, accounting or financial advice.

The second group is a different story. This group has income and/or assets that disqualify them. Typically they will have to pay for legal, accounting and financial advice. The typical cost for preplanning will be somewhere between $500 to $8,000. We would handle the preparation, presentation, and prosecution of the actual claim for no additional charge. If you fall into this group you will be informed of what needs to be done and what those charges will be prior to becoming obligated!

  • How much in net worth am I allowed to have?

You may hear that there is a limit of $80,000 to qualify (not counting exempt assets). This is merely a VA guideline and depends on your age and other factors. The limit may be lower, possibly much lower!

  • How much income am I allowed to have?

That depends on whether you are a veteran or a surviving spouse and your rating (i.e. category). The allowable income is expressed as IVAP. (IVAP is “income for veterans affairs purposes” which is basically a calculation of gross income minus various “medical expenses, ” as defined by the VA. Medical expenses usually include the cost of the ALF or SNF.) Your IVAP must be less than the maximum amount of pension you could obtain for your rating. A married veteran in need of aid and assistance (i.e. rated for aid and assistance) would be entitled to a maximum pension of approximately $1950 per month. The actual pension is computed by subtracting the IVAP from the maximum pension. So the IVAP must be less than the maximum pension to be entitled to anything.

    • Can I use the benefit to pay an individual for Home Health Care?

Yes, you can.

      • Can I use my current financial planner or attorney to help me file for the benefit?

First, unless the financial planner is accredited by the VA it would typically be unlawful for him to do so, even if he were acting for free. Second, if he is not accredited, how can you know if he really knows the rules that apply to this program and is giving you the best possible advice.

      • What is a VA fiduciary and how can that delay the benefit?

If the VA believes that the applicant is unable to handle his own financial affairs (usually based on information contained in the applicant’s physician’s report) then the VA will award the benefit but defer payment until someone is appointed to take care of the money for the applicant. This person is called a VA fiduciary and is usually, but not always, a family member. The process of determining if a fiduciary is necessary and whom to appoint can add another 4-6 months to the process before VA money is actually received. However, the award is retroactive.  See question #2.

      • What is the VA application process?

It is the process of the preparation, presentation and prosecution of the claim.

      • Does a surviving spouse need to have a marriage license to apply for A&A?

Actually, a marriage certificate is what is needed. The certificate proves that the surviving spouse was married to the Veteran and, therefore, is an eligible applicant. If you do not have the certificate, you may need to contact the county office that maintains these records. The office name is different depending on the state where the marriage took place. It might be called the County Clerk, County Recorder, or Clerk of Courts. If the marriage took place in a few larger cities this function may be handled by a city office.


Rev.4/25/2009 © 2009 Merwyn J. Miller, J.D., Attorney at Law.

Keywords:  Veterans, Disability, Pension, Surviving Spouse QVap Trust, Department of Veterans Affairs, Veterans Administration, Attorney, San Diego, aid, attendance, California, Encinitas, aid and attendance, non service connected disability

About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning

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