This is a frequent question we receive. It really depends on what you are trying to accomplish, what state the person is located within, where the property is located, how is it titled, etc.
Generally legal incapacity requires a Court Order which means a mental health file was opened suggesting the person lacks the required capacity to handle one of more of their rights. During this process the Court will determine, with the help of certain professionals (hopefully), to what extent this person should have their rights removed. At the end of that case if the person has been determined to lack capacity there is normally an appointment of a Guardian or Conservator (depending on the state).
However, for medical purposes a signed statement from two doctors can work.
For property that is owned by a trust one would want to reference how the trust determines incapacity. Often trust will require a court finding; while other trust agreements will only require a showing that the trustee would not submit to testing. These are really case by case situations.
When property is held in a bank or investment account one can often attempt to get the account frozen by showing a statement from a physician stating the person lacks capacity; however, for reasons beyond this post that is not the preferred means of dealing with the situation.
I hope that this answered your question.
Thursday, June 14, 2012
Friday, June 8, 2012
Aid and Attendance program coming under congressional scrutiny
Well it was only a matter of time before the VA started a look back period on the improved pension program commonly referred to as Aid and Attendance. The number of "nonprofits" running around signing every Tom, Dick, and Hairy up for the program after transferring all their assets was bound to catch up with the system. A recent New York Times (The Times) article has highlighted that it has reached a point that Congress has to take action regarding the program, the action suggested is a look back period much like the one Medicaid has in place (i.e. no gifting within five years).
The Times article approaches the subject from the point of view that the system is being abused. However, within the article you will see that the VA does receive some of the backlash over the “abuse” because of their eligibility rules and lack of systematic systems to verify income and assets. Therefore, Congress is forming a committee to investigate how things can be improved. It is likely that a look back period will be imposed. The question that should be asked is will Congress also take the necessary steps to force the VA to change their policies to provide a bright line test for being approved over the vague case by case approach that is currently in place with oversight to give these veterans the due process rights they deserve.
The Article goes so far as to make conclusions regarding some of the planning being conducted for these veterans such as trust planning. Specifically the trust in question is a irrevocable trust limiting ones ability to own assets so as to limit ones liability for having assets. Such a trust has been used for decades by anyone with potential liability (truck drivers, stock brokers, doctors, congressman, etc). The notion in the Times’ article is uses circular reasoning by saying because a trust was used there is abuse. This program is for war time veterans. Veterans should be afforded the same level of protection that members of Congress, Labor Bosses, Wall Street executives are able to utilize while claiming huge deductions, obtaining government subsidies, avoiding legal claims, and the like.
The VA should not be allowed to cherry pick one attribute from the Medicaid rules (i.e. the look back period) without taking in the other administrative rules that provide some assurance to those applying for those benefits.
In summary, I have no objection to the suggestion that the current system will be changed (saw this coming over 3 years ago). My experience with this program has been that veterans do not transfer huge sums to obtain the program. Just as with Medicaid so long as the transfer can be justified it should be allowed. Trust planning that is allowed for Members of Congress or disabled citizens on SSI should also be allowed for war time veterans. The concern expressed here is that this has the making of sloppy rule making. Let’s ensure that during this election year this benefit for war time veterans is given the attention needed to make a better program for these veterans not a more tangled program.
To read the New York Times article go to: http://www.nytimes.com/2012/06/06/us/veterans-pension-program-is-being-abused-report-says.html
To read the GAO Report go to: http://www.gao.gov/assets/600/591425.pdf
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