The purpose of veterans asset protection planning is to protect a wartime veteran’s assets in order to qualify the veteran to receive the Veterans Aid and Attendance special pension benefit to assist the veteran in paying for long-term care, typically care delivered at home or in an assisted living facility. Of course, like Medicaid, the Veterans Aid and Attendance special pension benefit has its own complex financial requirements that must be met. Meeting the financial requirements is often a difficult hurdle for a veteran seeking aid and attendance benefits, and the use of an irrevocable trust can provide a helpful planning tool.

Title 38 of the United States Code (U.S.C.) applies to veterans benefits. Other U.S.C. Titles have a bearing on veterans benefits as well, such as Title 5, which concerns government organization and employees, and Title 10, which pertains to the military.

The United States Code gives the Secretary of Veterans Affairs the authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws. 38 U.S.C. § 501.

The Secretary’s rules and regulations are contained in Title 38 of the Code of Federal Regulations (38 C.F.R.). The Compensation and Pension Service writes the regulations that pertain to the adjudication of claims for compensation, pension and other benefits that are processed by adjudication personnel. All regulations (proposed and final) are published in the Federal Register. One of the functions of the General Counsel is to give a written interpretation of the law whenever necessary.

Directives provide instructions to Veterans Administration (VA) personnel. There are different forms of directives but the ones most commonly encountered are Circulars (used when required for special projects, to implement a program with an ending date, to implement instructions subject to frequent change, or to test a procedure) and Manuals (designed to provide procedures for benefit payments and, in general, for all the work everyone in VA does).

The Practical Lawyer

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