Happy Veterans Day! In honor of our veterans, let’s take a look at the structure of the Veterans Asset Protection Trust (VAPT). The VAPT is a powerful tool that can protect assets while enabling the grantor to qualify for needs-based pension benefits. There are two sub-trusts within the VAPT – one is a grantor sub-trust and the other is a non-grantor sub-trust. Why is it structured this way? The Veterans Affairs (VA) has a direct line of communication with the IRS. The VA routinely checks the tax returns of pension recipients, to get income information. Because of this, it is best to avoid any “phantom income” from a grantor trust being reported on the grantor’s tax return. This additional reported income may jeopardize eligibility for benefits.

Once upon a time, the legal field relied on face-to-face interactions, loads of paper files, and gallons and gallons of ink. This is not so in the current day and age. Our legal documents were once handwritten, then typed and printed, and are now becoming a series of ones and zeros. Most attorneys now harbor a hybrid mix of paper and electronically stored data. For elder law attorneys, shifting their historically physical procedures into electronic practices is a foreign concept – a concept now coming to fruition in the form of electronic wills.

What are Uniform Acts?

Our nation is made up of sovereign states – meaning that each state governs itself separately from its neighbors. Although Federal law looms over the union generally, each state has leeway to vary its specific laws to reflect the needs and values of its population. The separation between states and the federal government also allow for discrepancies – and sometimes competing positions – on hot topics like medical marijuana or gun rights.

Establishing Medicaid eligibility requires a substantial amount of information from applicants. Understandably, the government only wants to offer benefits to those that truly need it. However, what if the applicant needs information from a spouse who refuses to give it? Spousal refusal means that a well spouse refuses to contribute his or her income or assets to the care of the institutionalized spouse. Spousal refusal is allowed in New York and Florida, where the states have enacted a version of the federal statute that authorizes it. In Connecticut, spousal refusal was upheld by a federal court in 2005. The New Jersey Division of Medical Assistance and Health Service has a spousal waiver, which is a waiver of the resource assessment in limited circumstances. Namely, there had to have been a break in marital ties before the institutionalized spouse sought Medicaid; or, there could have been an unverifiable death or divorce of the community spouse; or the community spouse’s whereabouts are unknown. In a recent case, the Superior Court of New Jersey considers an applicant’s spousal waiver in the absence of these pre-determined events.