Getting Help When You Need It


Jeff Mascitelli is the owner of CarePatrol, a senior placement agency located in Escondido here in San Diego County.  This week, Jeff submitted an article for our Southern California Legal Center newsletter, as a guest writer.  See below for some great information from Jeff and CarePatrol:

Most people tend to wait too long to arrange for support in the care of a loved one with dementia. For many families, support services are sought at the point where the primary caregiver has reached the end of their abilities to cope with the mental stress or physical demands, or at the point at which the primary caregiver’s own health is in jeopardy.

The energy it takes to care for someone with dementia creates both a physical and emotional drain; the caregiver must be diligent in monitoring the needs of someone with memory loss, and the job can quickly take a heavy toll. The underlying stress of not knowing what to expect and not knowing what may happen next erodes the caregiver’s ability to cope with the multiple physical demands of care giving.

Many people find it difficult to ask someone outside their immediate family to assist in providing the necessary care. By transferring some of the care responsibilities to professional caregivers, the family finds that this is exactly what they need in order to be of continued emotional support to their loved one.

There comes a point where one person may not be able to provide all the care needed by someone with Alzheimer’s disease. It may take an additional person, or even a group of people to meet the personal care needs of your loved one.

Learning to place your trust in other people takes time; learning to place your loved one in the trust of caregivers also takes time. No two caregivers will extend care in exactly the same way; being open to allowing care to be provided in a different but appropriate way will let you become comfortable with the new situation as well as helping the person with dementia to make a smooth transition.

Once the transition occurs, it is common for family members to have feelings of guilt. These feelings are a natural progression from being fully responsible to being only partially responsible. The beneficial trade off is that it becomes possible to meet the person’s physical and emotional needs by sharing the responsibilities.

Being committed to this change is essential in helping this transition to occur. It won’t be a perfect situation, but it is a situation, which is necessary to bring enough balance back into life to allow people to function.

The very best providers don’t always have availability, so planning ahead and knowing the various available options is the best way to plan for the future. Arranging for care while the person with memory loss is still able to integrate into their new lifestyle and routines is helpful. Taking a proactive approach to arranging for care is wise. If you’re caring for someone with dementia, chances are you need support. At the very least, you need a scheduled and specific break to care for your own, personal and emotional needs.

Pre-screening and monitoring every assisted living home and assisted living community’s latest Department of Health Services survey is important to finding a safe environment for a loved on.  This also helps assure you that your loved one is receiving the highest quality of care.

Gaining as much knowledge as possible about your current situation, such as healthcare needs, social activities, memory care, location and financial features, to evaluate and discuss available options is a critical part of a placement service.

Jeff Mascitelli can be reached at (760) 494-7800 or via email at if you have any questions about the topics in this article, or if you would like to learn more about care placement and caregivers for your family.

Proposed Government Changes to VA Pension Rules


On January 23, 2015, the Veterans Administration published proposed rule changes for some benefit programs.  These changes, in my opinion, are designed to ebb the flow of applications and to stop the transfers of assets in order to qualify for benefits.

The rules address net worth limits, transfers of assets, medical expenses, and income deductions.  To a large extent the rules are designed to mimic the Medicaid (Medi-Cal) rules, except that California has not yet implemented the Deficit Reduction Act rules, so these rules are a bit more ominous.

Net Worth

Net worth would be limited to the spousal allowance resource for Medicaid.  However, income would be added to the net worth calculation.  So if a claimant filed a claim and had $117,240 in resources (the Medicaid limit) but also earned $10,000 in income, the net worth would actually be calculated as $127,240 and that person would be disqualified.

The assets can be reduced by spending them or as they decrease in value, or both.  The claimant can still qualify if there are additional expenses that may reduce the income calculation (such as medical expenses).

Personal residences would be excluded even if the claimant is not residing in the residence.

Asset Transfers

Transfers would be penalized if they are covered assets (assets that would exceed the allowable net worth).  The lookback period would be 36 months and there is a presumption that a transfer made during this period was done for the purpose of reducing assets to qualify for the pension.  There are some exceptions if clear and convincing evidence supports a showing of fraud, misrepresentation, or unfair business practices related to the sale or marketing of financial products or services for the purposes of establishing the pension.   Interestingly, if a true gift (unrelated to pension qualification) such as if a person gave a child a gift of a car two years ago, this may cause the claimant to be denied VA Pension.

Penalty Period

There is a 10 YEAR limit on penalties imposed but the actual period is determined in a manner similar to Medi-Cal calculations for disqualification.

The effect of these rules can be quite surprising and discriminate against a surviving spouse vs a married couple.  Innocent gifts to children can catch the parent in a disqualification.  There are many other traps for the unwary which brings to the forefront why professional assistance is needed in this highly complex area of public benefits planning.

ElderCounsel, LLC has provided this office permission to send a comprehensive analysis of the proposed changes to the VA Pension rules.  Please email me for a free copy of this white paper.

Alzheimer’s and the Arts

Researchers are finding that music, art, and dance may be the key to improving mood and quality of life for those with age-related disabilities such as Alzheimer ’s disease.

Frederick Kunkle, a writer for the Washington Post, penned this article last week which noted that recent studies are focusing on the impact of the arts on elderly persons who have cognitive disabilities. Click on the image below to read Kunkle’s article at the Washington Post:


These studies differ from previous inquiries covering these diseases and the arts, as they are looking at the impact of the arts on the well-being, general happiness, and mood of patients, rather than simply looking at biological improvements in memory.  Kunkle also noted that previous studies were often too narrow or poorly controlled, and that these new studies were more thorough and took into account the wellbeing of the patient as a whole.

These researchers are being supported by the National Endowment for the Arts (NEA) and the National Institute of Health (NIH).   NEA department head Sunil Iyengar stated that these new studies were covering topics that researchers have tended to underplay in the last few years, such as how the arts can provide meaningful and measurable improvements in mood for both Alzheimer’s patients and their caregivers.

If you have ever had a family member who has suffered from an age related illness such as Alzheimer’s disease or dementia, you can understand how important mood and well being is for both the elderly person and their family and caregivers.   These diseases most often cause drastic changes in overall mood, making sufferers more aggressive, irritable, and hostile.  These studies are showing that exposing seniors to music, art, and dance can have a very measurable positive impact on their mood.

Kunkle’s article notes that dance and movement have been shown to help older persons avoid falls.  Reducing fall risk is hugely important for elderly persons, as a fall can put a person out of commission for a long time and have a drastic impact on their health.  The article also notes that music has been shown to help elders remember positive past experiences and to be more engaged in their communities, particularly in assisted living and other senior community settings.

In one assisted living facility in Mannassas, Virginia, resident George D. Moseley (70, suffering from paranoid schizophrenia) said that his training as an artist “…helps me to manage and cope, and have a positive attitude.”  He went on to say, “The paintbrush and the art give me an outlook and a feeling of serenity and peace, love, and joy.  The paintbrush is the treatment for all else that has failed.”  George is pictured below, next to a mural he has painted in an empty resident room:


Many senior living communities, assisted living facilities, and memory care facilities are already putting art, music, poetry, and dance within reach for their residents.  Hopefully this trend will continue and new studies will prove that the arts can improve the well being and quality of life for those who suffer from dementia and Alzheimer’s disease.

Is Applying for VA Pension Benefits Always the Right Answer Even if You Can?


After working with clients seeking the VA pension with Aid & Attendance, certain client profiles became apparent where the VA pension may not be in the best interest of the client(s).  Any attorney practicing in this arena must be attuned to myriad factors affecting the client’s decision to file a VA pension claim, such as the client’s age, health, prognosis and life expectancy, net worth, income, housing choice (home, assisted living, memory care, board and care, etc.), expected changes to the living condition and more.  In addition, the type of assets that a client holds can be the most important factor in determining whether or not to file a VA claim.


As mentioned in previous blogs, VA planning and Medi-Cal (Medicaid) planning are quite different.  Assets that are exempt under the Medi-Cal rules often are not exempt under the VA Pension rules.  One asset causing particular problems in VA planning is the IRA.  In California IRAs are not countable resources (if in pay status for the institutionalized spouse).  However, they are not exempt under VA Pension calculations.  What I have seen is a marked increase in clients presenting me with IRAs of substantial value.  The challenge is to do something with the IRA to make it not countable but without causing huge tax consequences.


When dealing with IRAs, there are really two extreme options.  The client can annuitize the IRA by investing the entire IRA into a single premium immediate annuity.  The downside of this approach is that the income generated from the annuity may be too large in relation to the share of cost and thus will not help the client in accessing the VA Pension.  Additionally all the cash is irrevocably tied up in this annuity and the client can no longer access a lump sum if needed.


On the other extreme, the client can liquidate the IRA and transfer the funds into an irrevocable trust or to the heirs.  Here there are tax consequences as the entire IRA value will be income in the year of liquidation.  This income may be offset by medical deductions but the larger the IRA the less can be sheltered.


An option in the middle may be liquidating some of the IRA and transferring the funds and annuitizing the remainder.  Detailed analysis must be done to find the “sweet spot”, often requiring services of a CPA or accountant to run tax returns based on different scenarios.


There are similar issues with deferred annuities that have substantial accrued income in the policies.


Clients have to be aware of the extra time the attorney needs to devote to this analysis (which translates into higher legal fees) to best position the client’s assets or to determine that the VA Pension does not make economic sense to pursue.


The bottom line is that even though the client could qualify for the VA Pension, the cost of doing so may be too great and thus the advice would be not to pursue the Pension.

VA Aid and Attendance Audits


Many of you have retained me to do estate planning and thereafter may have applied for the non-service connected disability pension benefits.  The information provided to the person that filed your VA claim is then matched against what is declared on the individual tax return.  I have had several of my clients contact me (and I have heard from many other attorneys in the country that they have been contacted by clients) with letters from the VA stating that they have compared the 2010 individual tax return against what was declared on the VA claim and have found discrepancies.  These discrepancies are usually indicating that the income on the tax return exceeds what was declared on the VA claim, thus the claimant exceeds the income limits, and they will terminate the VA pension payments.


If you get a letter like this please do not try and handle this without assistance. What is going on with this?  Perhaps there is an agenda with the VA to get back money that has been awarded.  Perhaps not.  The analysis of the VA adjudicator or auditor seems perplexing at best.


What the VA is doing is counting all interest and dividends earned for the calendar year and assuming that that amount is the income that should have been declared on the VA claim.  Often there is liquidation of IRAs, deferred annuities, and the like, that create taxable income which must be shown on the individual tax return.  If it is an IRA, the total amount of the IRA will be taxable income.  These funds may have then been consumed for care, or perhaps transferred out of the veteran’s name.


Income earned prior to the filing of the VA claim is NOT counted for VA purposes.  If, for example, a VA claim is filed in November, the VA should only look at income from November and December of that year.  Instead they are looking at the entire calendar year even though the income from January to October is not supposed to be counted.  This is causing the VA to conclude that the claimant had too much income in relation to their cost of care.  The correct calculation seems very simple but the VA has continued this practice.


There are some documents and explanations that need to be sent back to the VA in response to this VA audit letter.  If you are unclear about what you are doing you can really mess this up and we may not be able to prevent the termination of the pension.  So please contact us if you need any assistance on this.


After working so hard to get the pension, we don’t want to see you lose it over an incorrect response to the VA on this letter.  We suspect that the VA will start on the 2011 filings in the near future.