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Improved Wartime Pension
By Michael D. Fowler, J.D., LL.M.
The availability of assistance to
veterans with unreimbursed medical expenses is a
little-known and often misunderstood benefit, which can
provide payments of up to $2,020 per month to a married
veteran and $1,094 per month to the surviving spouse of
In order to be eligible, the veteran must have served at
least 90 days of active duty, at least one day of which
was during a declared wartime period. The veteran must
also have received other than a dishonorable discharge.
Once we have ascertained that the veteran needs “Aid and
Attendance,” we then look to the asset and income
limitations. With respect to assets, the residence and
certain other items are exempt; and in practice, the
older the veteran, the less net worth the VA will allow
to be retained to sustain the veteran for the rest of
his life. Generally, for planning purposes, we try to
reduce the veteran’ s net worth to as low a number as
the veteran can be comfortable with so as to maximize
the probability of approval of the application.
Unlike the Medicaid qualification criteria, there is
currently no look back period with respect to asset
transfers. We oftentimes, therefore, use irrevocable
trusts to which excess assets are transferred so as to
qualify the veteran for pension. A trust is not
absolutely necessary—the excess assets can be
transferred to children or other loved ones, but this is
generally not recommended because the assets are not as
well protected. For example, what happens if the child
dies, gets divorced, is sued, develops a substance abuse
problem, or loses their job?
The other advantage of this type of planning is that the
irrevocable trust can be structured in such a way that
the assets are not available resources for Medicaid
purposes after the expiration of five years.
If a married veteran already has an
income of $2,020 per month or more, the initial VA
reaction will be that the veteran cannot get the
pension—his income already exceeds the maximum pension
rate. The key here is to determine “income for VA
purposes,” which is gross income less unreimbursed
medical expenses. The cost of care in an assisted living
facility, for example, can be treated in its entirety as
unreimbursed medical expenses, therefore typically
qualifying eligible veterans for the maximum pension
Sometimes, the veteran needs assistance from a child or
other relative who does not live in the same household.
In that situation, we can help the veteran and the care
provider enter into a written personal care agreement
and the payments, under a properly drafted agreement,
will also qualify as unreimbursed medical expenses to
enable the veteran to receive the pension check.
Mr. Fowler has practiced in the Treasure Coast area
since 1980, with an emphasis on Wills, Trusts and
Estates since that time and has been a Florida Bar Board
Certified Wills, Trusts and Estates Lawyer since 1992.
He has also obtained Florida Bar Board certification in
Elder Law, and is one of only 3 attorneys on the
Treasure Coast to have such a distinction. Mr. Fowler is
a member of the Real Property, Probate and Trust Law
section and the Elder Law section of the Florida Bar and
a member of the Academy of Florida Elder Law attorneys,
the National Association of Elder Law Attorneys, and
ElderCounsel, a membership organization of attorneys
devoted to excellence in elder law services.