Monday, October 4, 2010

Veterans: Federal law limits your lawyer’s ability to help you get VA benefits.


Three distinct areas of benefits may be of significant value to older veterans: Health benefits; Compensation benefits, and Pension benefits. The receipt of VA benefits may be crucial to allowing a veteran with long term care needs to get needed care in the most appropriate setting, and to  preserving some limited financial security. The surviving spouse of a veteran may also qualify for VA benefits. However, federal law limits the ability of lawyers to help a veteran or surviving spouse obtain those benefits.  

The general rule is that no one is permitted to charge a veteran for assistance in filing an application for benefits. While a VA accredited attorney may assist a veteran with filing an application VA Benefits the lawyer may not charge for doing so. This is an obvious disincentive to lawyer involvement.

A lawyer is not allowed to charge a veteran for assistance in obtaining VA benefits until after the veteran has received a partial or complete denial from the VA Regional Office and filed a notice of disagreement (NOD). After the NOD has been filed a VA accredited lawyer is allowed to charge a fee for representing a veteran at hearings and during the stage of developing the evidence and preparing for and presenting Board of Veterans Appeals testimony. 

In addition to limiting the services for which a lawyer may charge to the post NOD time frame, VA regulations dictate the terms of the fee arrangement. The fee agreement must be in writing and be filed with the VA. It must be signed by both the claimant and the lawyer, include the name and relationship to the claimant of any disinterested third-party payer, the applicable VA file number, the terms of payment, and a direct payment clause (if applicable).
 
VA must approve the amount of the fee. A lawyer may not “enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation." (38 C.F.R. 14.632(c)(5)). Fees can be based on a fixed fee arrangement, hourly rates, a percentage of benefits recovered, or a combination of these.
 
Fees which do not exceed 20 percent of any past due benefits awarded are presumed to be reasonable. Fees which exceed 33 1/3rd percent of any past due benefits awarded are presumed to be unreasonable. If the fee agreements provides for payment of fees by VA directly out of past-due benefits awarded, total fees (excluding expenses) may not exceed 20 percent of past due benefits and the amount of the fee must be contingent on the favorable resolution of the claim.

VA requires that a lawyer be "accredited:" in order to lawfully assist a claimant in the preparation of a claim for Veterans benefits regardless of whether fees are charged. This means that a lawyer who charges a flat (fixed) fee for elder-law services such as estate, incapacity, and Medicaid planning, must be accredited by the VA if the services include the preparation of an application for VA benefits.  And the lawyer cannot charge for the VA application portion of the services.  

Since lawyers must be accredited and cannot charge for assisting a claimant in regard to the initial filing of a claim, most veterans rely on the free assistance available to them from County Veterans Affairs offices[1] or accredited veteran services organizations.[2] Because of the accreditation and fee restrictions most elder law attorneys do not handle the filing of veteran’s claims for their clients but refer their clients to these free services.

Nevertheless, Veterans benefits are an important factor in planning for long term care, financial, and estate planning for veterans and their surviving spouses. An elder law attorney needs to be  familiar with all the important benefits that may be available to the client. But, the limitations on lawyer representation in Veterans benefit matters make it less likely that the lawyer will have the knowledge required to provide the most comprehensive planning for the client who is a veteran.  


[1] A listing of County Veterans Affairs offices is available at http://www.portal.state.pa.us/portal/server.pt/community/county_directors_for_veterans_affairs/11384
[2] A listing of Veterans Service Organizations recognized by the VA is available online at http://www1.va.gov/vso/index.cfm?template=view

 

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