When the Family Should Use a Consultant


Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited.  The only exception to this law is that any one person can help any veteran -- one-time only -- with a claim.  To help any veteran a second time requires accreditation.

VA recognizes 3 types of individuals for purposes of accreditation. 

  1. Accredited attorneys
  2. Accredited agents and
  3. Accredited representatives of service organizations.  (Veterans Service Officers)

In order to be accredited to help veterans with new claims, an individual desiring this certification from VA must submit a formal application, must meet certain character requirements and work history requirements and, except for attorneys, must pass a comprehensive test relating to veterans claims and benefits.  There are also requirements for ongoing continuing education.

Without accreditation no one may help a veteran with a claim more than one time.

Paying a Fee for Help with Filing a Claim

Federal code and VA regulations prohibit an accredited agent or accredited attorney from charging a fee to provide assistance with an application prior to an adverse decision from VA. Some accredited practitioners or providers help their clients for free, sometimes in the context of solving other retirement issues or providing long term care services. Some practitioners offer non-claim related consultations for a fee but will send their clients to a veterans' service organization to complete the application.

Situations Where a Consultant Should Be Used for Help in Filing a Claim

Below are six situations where using a consultant, who understands the claims process for Pension, can be of great help or in some situations a necessity. There are undoubtedly more situations that may exist and as reports come in from consultants, we will add them to this list.

Using an Accredited Consultant Where Complexity or Time Constraints Justify Paying Someone for Advice Not Related to the Filing of a Claim Attempting to gather up the necessary forms and researching what information is necessary for a successful claim can be a daunting task. This is especially true for busy family members who are employed full time and are trying to help a loved one obtain a VA benefit.

Using an Accredited Consultant When Submitting Claims Applications for Nursing Homes
We discussed in a previous section that a Pension claim for a potential beneficiary in a nursing home is a straightforward task that by itself, would not require the help of a consultant. Unfortunately, the pension benefit is usually not sufficient to cover the difference between the beneficiary's income and the cost of the nursing home. In many cases, the veteran or the surviving spouse in the nursing home is forced to apply for Medicaid.

Dovetailing Medicaid income with the Pension benefit could work in some cases but in other cases Medicaid and Pension don't mix. In those cases where it fits, Pension can be a valuable additional resource for a nursing home patient. When trying to make Medicaid and Pension work together, a potential claimant should always seek out the advice of a knowledgeable consultant. Certain legal strategies relating to Medicaid eligibility could be applied in these special cases. Advisers, who understand Medicaid rules and VA eligibility, might be able to apply some of these strategies to produce more household income.

Using an Accredited Consultant with Applications Where a Single Claimant Will Be Abandoning the Principal Residence
When a single veteran or a single surviving spouse of a veteran leaves his or her principal residence to live in assisted living or in a nursing home, there could be a potential conflict with a Pension benefit award. VA will not count the principal residence against eligibility for Pension income as long as it is occupied by the veteran or spouse.

On the other hand, the family or the beneficiary may wish to rent out the house or sell it. These activities must be reported to VA and could affect the amount of the Pension income or even disqualify the Pension income. In some cases, not living in the primary residence will result in a disallowance of the benefit and the demand for repayment of benefit monies.

A consultant should always be sought out in these cases.

Using an Accredited Consultant with Applications That Require Estate and Tax Planning
Gifting of assets many cause tax problems for unwary benefactors. This might include loss of the step-up in value for real estate or conversion of capital gains to ordinary income. Also, outright transfers to members of the family may not be a good idea in certain situations. Charitable gifting should also be considered as a way to create income tax credits and reduce costly capital gains taxes on appreciated real estate.

Tax planning and orderly distribution of assets should be part of the gifting process. This usually requires specific legal documents in order to achieve the desired outcomes.

Using an Accredited Consultant with Applications That Involve Business Ownership, Farms, Business and Investment Property and Assets That Are Difficult to Turn into Cash
Disposition of these types of assets is always more difficult than dealing with a more liquid estate. It is an absolute necessity for business owners, farmers and those with substantial real estate holdings to consult with someone who can provide reliable advice on determining asset values. In some cases, non-liquid assets can be retained and still not disqualify for a Pension income. Tax considerations are always paramount with these types of properties.