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Government Benefits

What is Dependency and Indemnity Compensation and how do I qualify for it?

By Government Benefits, Veterans Affairs

Question: What is Dependency and Indemnity Compensation and how do I qualify for it?

Answer: Dependency and Indemnity Compensation (DIC) is a tax free monetary benefit paid to eligible survivors of military service members who died in the line of duty or eligible survivors of Veterans whose death resulted from a service-related injury or disease.  In order to apply for DIC in Sarasota or Manatee County, contact Terry Acton at 941-861-2899.  At the time of application, you will be required to supply documentation that substantiates that the surviving spouse qualifies for the benefit.  A surviving spouse can qualify for DIC if the surviving spouse was either: (1) Married to a service member who died on active duty, active duty for training, or inactive duty training; OR (2) Validly married the Veteran before January 1, 1957; OR (3) Married the Veteran within 15 years of discharge from the period of military service in which the disease or injury that caused the Veteran’s death began or was aggravated; OR (4) Was married to the Veteran for at least one year, OR (5) Had a child with the Veteran.  In addition, the surviving spouse must have (1) cohabited with the Veteran continuously until the Veteran’s death or, if separated, was not at fault for the separation AND (2) Is not currently remarried.  Note: A surviving spouse who remarries on or after December 16, 2003, and on or after attaining age 57, is entitled to continue to receive DIC. The VA is now recognizing same sex legally married couples for all VA benefits.

If you need legal advice for VA benefits, Medicare, Medicaid planning, estate planning, probate or trust administration, please contact our office at (941) 906-1231 for an initial consultation.

February 20, 2014
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What are the new 2014 benefits for Aid and Attendance pension for wartime Veterans and their surviving spouses?

By Government Benefits, Long-Term Care, Veterans Affairs

Aid and Attendance is a pension for Veterans and surviving spouses who require regular care attendance form another person to assist with the activities of daily life such as eating, bathing, dressing, medication allocation, blind, or need for assisted living or skilled nursing care.
Aid and Attendance benefits can assist paying for the costs of a caregiver in the home, assisted living and skilled nursing costs.

Aid and Attendance benefit for wartime Veterans for 2014 is as follows:

  • Single Veteran = $1,758 a month
  • Married Veteran = $2,085 a month
  • Surviving Spouse of at Veteran = $1,130 a month

If you need legal advice for VA benefits, Medicare, Medicaid planning, estate planning, probate or trust administration, please contact our office at (941) 906-1231 for an initial consultation.

February 17, 2014
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Am I eligible to apply for the higher Social Security income of my ex-spouse after they die?

By Elder Law, Government Benefits

Question: My ex-husband has died.  Can I apply for his Social Security income, which is higher than mine?

Answer: If you are the divorced spouse of a worker who dies and your marriage lasted for 10 years or more, you could get the same benefits as a widow or widower, regardless of whether your ex-spouse remarried!

Benefits paid to you as a surviving divorced spouse who meets the age or disability requirement as a widow or widower will not affect the benefit rates for other survivors getting benefits on the ex-spouse’s record.
Note:  If you remarry after age 60 (age 50 if disabled), it will not affect your eligibility for survivors benefits.

January 31, 2014
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How to Apply for the Higher Social Security Income of a Deceased Spouse

By Elder Law, Government Benefits

Question:     My spouse has died.  How do I apply for the higher Social Security income?

Answer:    When your spouse dies you are entitled to receive his or her social security retirement income if it is higher than yours.
You can apply for benefits by visiting your local Social Security office or you can call the national toll-free service at 1 (800) 772-1213.  It is recommended that you call ahead to schedule an appointment to reduce your wait time but an appointment is not required.
You will be asked to provide documentation to show proof of your eligibility.  Below is a list of documents which may be requested:
•    Death Certificate;
•    Birth Certificate or other proof of birth;
•    Proof of U.S. citizenship or lawful alien status if you were not born in the United States;
•    U.S. Military discharge papers if you had military service before 1968;
•    U.S. Military discharge papers;
•    W-2 forms and/or self-employment tax returns for last year;
•    Final divorce decree, if applying as a surviving divorced spouse; and
•    Marriage certificate

January 28, 2014
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What Determines a Disabled Adult Child and What Social Security Benefits Can They Receive?

By Government Benefits

Disabled Adult Child (DAC) is an adult child who has a disability that began before they became 22 years old.

 What is the social security benefit for a Disabled Adult Child when a parent retires?

The benefit is based on 50% of parent’s retirement benefit.

Example: If the parent’s retirement benefit is $1500, the disabled adult child would be eligible for $750.

 If the child is currently receiving income at the current SSI rate of $710 and he/she is eligible for $750, SSI goes away and the child receives the higher amount.

If the child’s eligibility is less than the current SSI rate of $710, a calculation of SSI and retirement benefits would take place.

For example: Parent’s retirement benefit is $1400, the disabled adult child is eligible for $700. The child would receive $30 in SSI benefits and the remaining $680 would be paid from the retirement benefits.

 What social security benefits does a Disabled Adult Child receive when a parent dies?

The benefit is based on 75% of parent’s retirement benefit.

Example: If the parent’s retirement benefit was $1500, the disabled adult child would be eligible for $1125.

What happens when the remaining parent of Disabled Adult Child retires or dies?

 If the surviving parent had a higher earnings record, they should contact Social Security Administration to apply to switch over for the higher benefits.

 If you need legal advice for estate planning, probate and trust administration, Medicaid planning, or VA benefits, please contact our office at (941) 906-1231 for an initial consultation.

August 21, 2013
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How Do I Sign Up for a Direct Express Debit Card?

By Elder Law, Government Benefits

Beginning March 1, 2013, beneficiaries of government benefits are required to have their funds directly deposited into a bank account or they can receive funds through a Direct Express Mastercard issued directly from the government through Comerica Bank.

Signing up for the Direct Express card is easy. Call 1-800-333-1795 or go online to www.godirect.org.

The card will allow beneficiaries access to their funds by making purchases or withdrawals at ATMs. The card has no sign-up fee, no monthly fee and no overdraft charges. There is no fee for teller transactions and beneficiaries can access more than 50,000 participating ATM machines once monthly at no charge.

This new law will save the government a considerable amount of money. It costs $0.92 more to issue a paper check than it does to process funds electronically. There is also less risk of funds being lost or stolen.

Automatic waivers of this new electronic mandate are granted to those beneficiaries born on or before May 1, 1921.

If you need legal advice for estate planning, Asset Protection Planning, Medicaid or planning, please contact our office at (941) 906-1231 for an initial consultation.

January 20, 2013
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Landmark Decision for Medicare Recipients Increasing Medicare Coverage for Home Care and Skilled Nursing Rehabilitation

By Elder Law, Government Benefits, Long-Term Care, Medicare

Historically well informed Elder Law advocates have challenged the denial of Medicare coverage for a full 100 days in skilled care after a three night hospital stay under the premise that this common practice is not consistent with federal law.  Finally this denial of coverage may end thanks to a landmark class action settlement.

            Those receiving rehabilitation in skilled care or Medicare home care have historically been told that coverage will end when the patient is no longer showing signs of improvement.  However, neither Medicare law nor any Medicare regulations require the patient show a likelihood of improvement.  But this became “the” accepted practice due to provisions of the Medicare manual and guidelines use by Medicare contractors which suggested that coverage should be denied or terminated when a patient reaches a plateau or is not improving or is stable.

            This settlement should result in increased Medicare coverage for rehabilitation in skilled care and home care if the services are needed to “maintain the patient’s current condition or prevent or slow further deterioration.”

            Under a proposed settlement expected to be approved by a Federal Judge this week,  Federal officials will rewrite the Medicare manual to make it clear that Medicare coverage of nursing and therapy services does not turn on the presence or absence of an individual’s potential for improvement but is based on the patient’s need for care.

            While this may increase the Medicare budget it is an honest reflection of what the law is currently.  Is it an honest correction of a misapplication of regulations interpreting the law.

Many beneficiaries may now be able to continue Medicare home care and thereby avoid skilled care.  In these cases, Medicare costs may actually be reduced by keeping the patient at home.  Many more patients should be able to receive the full 100 days of skilled nursing services, so long as the care is required to maintain the patient’s current condition.

If you need legal advice for estate planning, Medicaid planning & Medicare, or VA planning, please contact our office at (941) 906-1231 for an initial consultation.

October 26, 2012
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Frequently Asked Questions about the Americans with Disabilities Act

By Elder Law, Government Benefits, Medicare
The Americans with Disabilities Act (ADA of 2008 is a federal law that prohibits discrimination against individuals with disabilities.)
To whom does the Act apply?
Title 1 of the ADA covers employment by:
private employers with 15 or more employees, state and local government and Federal sector
In addition, most states have their own laws prohibiting employment discrimination on the basis of disability.
A two-step process is used to determine whether an individual with a disability is qualified:
  • Determine whether the individual satisfies the prerequisites for the position such as possessing the appropriate educational background, etc;
  • Determine whether or not the individual can perform the essential functions of the position held or desired.
When is cancer a disability under the ADA?
Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s life activities.The ADA includes 2 non-exhaustive lists of “major life activities.”
Walking, seeing, breathing, working, reading, bending and communicating
The second list includes major bodily functions (immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions)
Even when cancer itself does not substantially limit any major activity (such as when it is diagnosed and treated early), it can lead to the occurrence of impairments that may be disabilities.
Do employers have full access to medical information?
Title 1 of the ADA limits an employer’s ability to ask questions related to disability or conduct medical examinations at 3 stages: pre offer, post offer, and during employment.

  • An employer may not ask whether the job applicant has or had cancer or about treatment related to cancer prior to making a job offer.
  • An employer can ask an applicant questions pertaining to the performance of the job (whether he can lift weight, can travel out of town; whether he/she can work rotating shifts, etc.)
  • A person with cancer is permitted to request an accommodation after becoming an employee, even if she did not ask for one when applying for the job or after receiving the job offer.
  • With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee.
  • Telling co-workings that an employee is receiving a reasonable accommodation amounts to a disclosure of the employee’s disability.
What protection is there against discrimination?
Employers and their agents may not discriminate against a qualified individual with a disability because of such disability in any aspect of the employment relationship.
Focus is on the following: hiring, pay, benefits, segregation, advancement, discharge, training, testing and contractual arrangements.
What is reasonable accommodation?
Employer must reasonably accommodate a qualified individual with a disability unless to do so would cause an undue hardship.  There is no precise definition of reasonable accommodation.
Examples include: making existing company facilities accessible; permission to work at home; modification of office temperature; permission to use work telephone to call doctors; reallocation or redistribution of marginal tasks to another employee; job restructuring; reassignment to a vacant position; medical leave; providing qualified readers or interpreters; acquisition or modification of equipment or devices.
BUT! An employer is not obligated to provide personal use items such as glasses or hearing aid.
What does undue hardship mean?
Undue hardship means an action requiring significant difficulty or expense in, or resulting from, the provision of the accommodation.Factors to be considered:

  • The overall financial resources of the employer;
  • The number of persons employed by the employer;
  • The nature and cost of the accommodation needed, etc.
How is this legally enforced?
Any person who believes that his/her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the US Equal Employment Opportunity Commission (EEOC).
May 13, 2010
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Social Security Checks May Get Smaller

By Elder Law, Government Benefits

Clients often come to our office to do Asset Protection Planning. Historically, we have been able to advise them that no creditor put a lien on their Social Security income.
Unfortunately, there is a new legislation that will allow federal agencies to place a lien on Social Security income. If a retiree receiving Social Security owes money to IRS, Veteran Affairs, Department of Education, Department of Agriculture, Army and Air Force Exchange Service or any other federal agency, such debt would result in reduction of his or her Social Security income. Social Security income can’t be reduced to below $750. Tax debts, however, have no floor.
We are afraid it will considerably reduce Social Security income of our elderly and/or disabled. The only recourse for our older and disabled Americans is to lobby against this law with their local legislators.
For more information see article in The Wall Street Journal, March 8, 2010 at This Link.

January 25, 2010
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Lower the Cost of Prescriptions for All Florida Residents with Florida Discount Drug Card

By Government Benefits

Good news! All Floridians can sign up for the Florida Discount Drug Card to save on their prescription medication. The Florida Discount Drug Card is now available to all Florida residents and is accepted at over 60,000 pharmacies nationwide. Florida residents who qualify based on age or income are eligible to receive additional savings.
You can easily sign up, print your card, locate a pharmacy, and compare prescription drug prices at www.floridadiscountdrugcard.com

January 25, 2010
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