Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.


Unknown to many veterans, the Veteran's Administration (VA) offers a pension benefit, known as “Aid and Attendance,” to low-income veterans (or their spouses) who are in nursing homes or who need help at home with everyday tasks (dressing, bathing, etc.).  In 2015, it could provide a wartime veteran with up to $21,466 a year ($1,788 per month) to cover care at home or in assisted living. A veterans surviving spouse was also eligible for Aid & Attendance benefits up to $14,353 per year ($1,196 per month). While the benefit is currently underused, new regulations have made it available to even fewer veterans. The new regulations specify asset limits for qualification and impose a look-back period and transfer penalties similar to Medicaid’s.

The regulations set an asset limit of $119,220 in 2016 (the same amount that a Medicaid applicant’s spouse may retain) for eligibility. This number will include both the applicant's assets and income and will be indexed to inflation in the same way that Social Security increases. The VA will not reduce the applicant’s assets by the amount of any mortgages or encumbrances on their primary residence or provide a hardship exception. Fortunately, an applicant's home (subject to a two acre lot size limit) will not count as an asset. The home exception will apply regardless of whether the applicant is residing in a nursing home, medical foster home, or an assisted living or similar residential facility that provides custodial care, or resides with a family member for custodial care. However, if the home is sold the sale proceeds will count as assets.

The regulations also establish a three-year look-back provision. This will adversely impact an applicant who has transferred assets within three (3) years of applying for benefits.  Those who violate the regulation can be subject to a ten (10) year penalty period (the penalty period will in months by dividing the amount transferred by the applicable maximum annual pension rate). An applicant can avoid the penalty if they can “present clear and convincing evidence that the transfer was not made in order to qualify for Aid and Attendance benefits.” Under the prior regulations, there was no penalty if an applicant divested themselves of assets before applying.