Author: Jasper Berg, J.D.

  • Estate Documents Ranked

    Estate Documents Ranked

    In one of my recent community education classes, I was asked to rank my favorite estate documents.  Thus, here we go…

    Really though, I think the issue was more about money than actual estate documents.

    In other words, if I had a limited budget and I needed to use my resources wisely, which documents would I desperately need?  Minus my first reaction – all of them, here are my thoughts:

    Estate Documents Ranked #5 – Revocable Trust

    Because a trust document is a lengthy and tedious process, I am ranking trust documents number five verses number one.  But, their effectiveness is off the charts.

    A long long time ago, people started using wills to make sure their stuff was passed along easily and effectively.  Those days are gone.  Today, one of the most effective tools is a revocable trust.  Your grandparent’s estate planning methods are out of date.  If you are a grandparent, making an update can make holiday gatherings fun again.

    My point is this:  because a trust helps families reduce the risk of probate and it grants a trustee an opportunity to manage our affairs while we are still alive, I believe a trust is absolutely one of the best documents in any plan.

    #4 – Transfer on Death Deed

    My fourth estate documents ranked are transfer on death deeds or TODD.  In practice, this document is awesome because it instantly transfers property titles to another person or beneficiary.  Sometimes, eve more than one beneficiary.

    On the other hand, drafting a legal description and using the right conveyance form makes this process difficult for families needing help.

    Nonetheless, because this type of document trumps a will and our number one asset is often a home, I ranked transfer on death deeds higher than a traditional will.

    #3 – Health Care Directive

    When I am sick or unable to talk for myself, I like the idea of making sure my loved can make health decisions on my behalf.  Luckily, a health care directive or living will can do just that.

    I am in favor of making sure my affairs are straight when I am dead, so the burden imposed on my family is less.  But, I like the idea of focusing on my own well being while I am alive.  This is especially true when I introduced to an unexpected emergency.

    Thus, I like the idea of ranking living wills as my third favorite estate planning document.

    #2 – Power of Attorney

    A lot of people are surprised when their spouse cannot make certain transactions on behalf of their partner, without being granted a power of attorney.  Luckily, this risk can be accounted for by using a free form linked below.

    Yes, one of the most powerful documents we can put our signature on is a Power of Attorney form.  Some people are scared of this.  Others, use it to their advantage.  Obviously, every person is different and they should seek advisement exclusive to their situation.  That said, it is worth the effort of reviewing what this type of document might look like.

    Since Minnesota introduced a free power of attorney form, I encourage many folks to select their attorney-in-fact wisely, while ensuring certain household events are easily cared for:  house payment, buying groceries, assessing my checking account, etc.

    Even more significant, a power of attorney can be used if or when I am incapacitated, which puts me at ease.

    #1 – Beneficiary Forms

    My number one estate documents ranked are beneficiary forms attached to financial accounts (IRA, 401K, 403b, etc.).  Usually, these types of documents are readily available, are easy to fill out and offer instant relief.

    In many circumstances, a beneficiary form will trump directions outlined in a will or trust.  Because they are so effective, anybody failing to update their beneficiary form is creating a huge mess or forcing their family to seek relief in probate court.

    In addition, I like the idea of gathering copies of my beneficiary forms and having them available.  In other words, I keep copies of beneficiary forms with my other important documents.  In theory, this will help my loved ones with an easier transition upon my demise.

    Estate Documents Ranked – Honorable Mentions

    Of course, there are many other resources that families and veterans should consider when creating an estate plan.  Thus, here are a few resources and documents that folks are using:

    • Minnesota’s Attorney General’s feedback on Estate Planning
    • Pour Over Will
    • Funeral Directive
    • Certificate of Trust
    • Standby Guardian for a Child
  • Employment Misconduct in Minnesota Means Just About Anything

    Employment Misconduct in Minnesota Means Just About Anything

    Employment misconduct is a phrase used with unemployment benefits in Minnesota.  As you will see, it can mean just about anything. As a result, how events are described is a critical takeaway for applicants to consider.

    In my experience, workers, employees, managers and executives focus way to much energy on why they didn’t do anything wrong versus what they did right.   Focusing on what an applicant or employee did right is sometimes a very strong strategy when trying to win an appeal for benefits.

    Because misconduct in an employment setting is a phrase used by people who do not understand it, I prefer to focus on what isn’t employment misconduct.

    Even more importantly, there are 10 things that are not employment misconduct.  In other words, if a person in MN gets fired or discharged because their actions can be defined as so, then very likely, that same person is on the right track for benefits.

    Unfortunately, there are thousands of cases (or a legal precedent) that define this list of 10.  Knowing this list is important.  Knowing how Minnesota further defines this list is even more important.

    None the less, I want to introduce these ten things because they can help inspire a successful appeal for unemployment benefits.

    Employment Misconduct – The List of 10

    Here are the 10 things, in no particular order,  that are not considered employment misconduct:

    1. Medical or Mental health Issues
    2. Inadvertence
    3. Unsatisfactory Conduct
    4. Reasonableness
    5. Inability
    6. Good Faith
    7. Absence because of an Illness
    8. Absence because of a Family Member
    9. Chemical Dependency
    10. Domestic Abuse

    Fired Because of Medical issues

    Generally, a person who is fired from their job because their work was impacted by a medical or mental health issue can become eligible for unemployment benefits.

    Of course, every medical and mental health issue is not treated the same.  For this reason, this issue usually requires a nexus between the health issue and the event(s) that led up to the employee’s termination.

    Also, a lot of applicants incorrectly identify this issue and end up disqualifying themselves because their future work is impacted by a medical issue too.  Again, this is a complicated term.

    Inadvertence is Not Employment Misconduct

    The term inadvertence means something different to nearly every employer.  In my experience, the priority of expectations will usually be the number one contributing factor to a challenge due to inadvertence.

    As you might expect, an argument in favor of inadvertence isn’t the strongest approach, but it can work because the law supports it.

    Employment Misconduct in MN doesn’t include Unsatisfactory Work

    A lot of folks think work satisfaction is production based.  In other words, if I produce something and my employer doesn’t like it, I must have produced unsatisfactory work.

    Wrong.  Unsatisfactory work has nothing to do with production and everything to do with expectations.  This means a worker, employee, executive or whomever needs to identify an expectation and prove how it was exceeded.

    Unfortunately, a lot of applicants become frustrated when their employers lie about expectations.  For this reason, finding tangible evidence can become increasingly important.

    Acted Reasonable is Not Employment Misconduct

    I cringe when folks talk to me about reasonableness because they usually have no idea that acting reasonable requires specific examples of past interactions or supporting a specific thought process.

    Saying an event was reasonable usually doesn’t stick until the event is compared to past events or past experiences with other staff, customers, or situations.

    Nonetheless, showing why an action was done in a reasonable manner can have a very powerful outcome for folks appealing their unemployment benefits.

    Inability is Not Employment Misconduct

    Like I mentioned above, the term employment misconduct is defined by thousands of court cases.  In my experience, inability can mean a number of things:  lack of skill, lack of training, lack of understanding and work overload.

    Sometimes, applicants confuse inability with indifference or a lack of attention.  Nonetheless, this is one of the ten ways a person can prove why they should be eligible for benefits in Minnesota.

    Getting Fired When Acting in Good Faith

    Good faith and reasonableness have a lot in common.  If worker can outline a specific process and back it up with experience, expertise, knowledge or valid communications, then this issue becomes less complicated.

    On the other hand, acting in good faith while using poor judgment can create problems for applicants appealing their unemployment claim.

    Is Being Absent from Work, Employment Misconduct?

    The difference between being absent from work and abandoning one’s job is huge.  As you might expect, employers need to keep their business running.  When they cannot depend on a person or a person does not show up for work, employers are often left with little choice.

    But, just because an employer doesn’t have a choice, doesn’t mean a worker is automatically ineligible for unemployment.

    Instead, when employees can prove bad luck, acts of God or an event that the employee did not have control over, then folks have a promising case.

    But, communication is key.  Calling into work and sharing bad news, bad luck, etc. always looks good.  Certainly, I have seen plenty of people who have had such bad luck, they didn’t have access to a phone or cell phone.  Yes, even in modern times, people are unable to reach a phone.

    Fired for Drugs or Alcohol

    The employment misconduct rules in Minnesota are very supportive of folks with drug and alcohol issues.  Where drugs and alcohol turn into a problem for ineligible is when a worker is required to drive or use heavy equipment.  Again though, there are many legal theories around this too.

    Domestic Abuse is Not Employment Misconduct

    A long, long, time ago, I had a Client who was discharged because they were injured from a domestic abuse situation.  What made their case troublesome was the fact they were unwilling to talk about it openly and they were afraid to seek help from the police.

    In my experience, this is more often the rule than the exception.   Sometimes, workers can use the medical and mental health issue referenced above to assist their cause without risking their own safety.  Other times, this isn’t possible.

    For those needing help with this issue or any issue listed above, I like the idea of making sure a person is comfortable with the process before proceeding.

    Appealing Employment Misconduct

    Yes, seeking an appeal is worth the effort.  If you are appealing unemployment benefits after being told in a letter that the unemployment office thinks your actions were employment misconduct, please contact me directly.

  • Social Security For Veterans: The Faster Way

    Social Security For Veterans: The Faster Way

    Social security for Veterans who are not retired is a very common issue.  In fact, I wish more veterans who have a disability would file and seek social security benefits.

    The intent of this post is to point out a special rule military veterans with a 100% permanent and total (P and T) disability rating.  The rule is simple:  vets with a hundred percent disability rating can seek an expedited claim process for social security benefits.

    For the military veterans who do not have a 100%  disability rating, don’t give up.  Seeking SSDI benefits is a worthwhile process and appealable too.

    Veterans With a 100% P and T Disability Rating

    Whether a Vet files a claim online, by phone, or using a paper application, every applicant seeking benefits should be:

    • Identifying themselves as a Veteran
    • Adding a special remark to their paper application, and
    • Attaching and submitting their VA award letter.

    Social Security for Veterans:  How Long Does it Take?

    Every case is different and there is not a black and white answer.  However, military veterans who have an organized claim with supporting documents from their medical doctor seem to have the most success.

    Sometimes, the Social Security Administration will send a military veteran to a government doctor for an examination.  If possible, having a diagnosis and prognosis outlined by a medical doctor or VA doctor beforehand offers the veteran a better opportunity to acquire an approved claim.

    Social Security for Veterans:  Another Trick to the Process

    In my experience, when SS looks at a Veteran’s claim, they are looking for two facts:

    • The military veteran is unable to work, and
    • The vet has a severe impairment.

    When Social Security reviews the issue about a severe impairment, consider one of these two tests:

    • The impairment is going to last for more than a year, or
    • the impairment that will result in death.

    Veterans Filing Social Security Claims

    Again, there are three ways a military veteran can file a disability claim for Social Security:

    • Apply online HERE,
    • Calling the SSA at 800-772-1213, or
    • Visiting the nearest social security office.

    Social Security for Military Veterans

    Veterans who run into road blocks on their VA claim or social security claim can file an appeal.  If you need help with this process, please contact me directly.

    I wish you the very best.

  • Phone Appeal Hearing: Tip #008

    Phone Appeal Hearing: Tip #008

    Your phone appeal can be successful when you know the type of records you can acquire before your unemployment hearing.

    Having a successful game plan for an unemployment appeal hearing is really important.  After filing an appeal, more questions will arise. For example, the unemployment office will probe on the reasoning for the job ending.

    Elementally, all applicants must weigh the type of evidence needed to win the hearing. The next unemployment tip is as follows:

    Unemployment Tip # 008 –  Before going into an unemployment phone appeal hearing ice cold, acquire copies of performance reviews, handbooks and anything else (like one’s entire personnel file). This can be accomplished by using Minnesota statute 181.961.”  

    In other words, applicants seeking benefits in Minnesota can obtain documents from their employment file. In fact, employers must abide by the request. This can be helpful, especially when combating a lie or misreported event.

    Other times, employees might consider using records to prove their eligibility and or establish credibility.

  • The Difference Between VA Form 22 and VA Form 21-22a is Huge

    The Difference Between VA Form 22 and VA Form 21-22a is Huge

    The difference between VA Form 22 and VA Form 21-22a is as easy as determining whether the Veteran wants an attorney or a Service Officer to represent them during an appeal.

    VA Form 22 is used when a Veteran wants a Service Organization, like the VFW, to represent them.  VA Form 22a tells the VA an attorney is representing the Claimant.

    Why is VA Form 22 Important?

    One of the reasons this VA form is so critical is the fact it helps clarify when and where notices are sent.  In other words, when the VA contacts a military veteran by mail, where should the mailing go?

    Second, this form helps clarify who can speak or file documents on behalf of the Veteran.  If a Veteran’s representative fails to submit one of the above mentioned forms, a filing might go unrecognized.

    As you know, VA benefits are a serious matter.  In my personal and humble opinion, I like the idea of retaining an attorney versus a service organization because VA benefits are supported and protected by federal laws.  As an attorney, I work with laws, rules and the legal process on a daily basis.  Even though service organizations do great work, consitutional provisions and due process isn’t necessarily their strong suit.

    When Can Veterans Use VA Form 22?

    A Veteran can retain a lawyer or service group at any point before or during their appeal process.  In some cases, veterans hire attorneys after their appeal has expired.  But, this is a topic for a different day.

    Regardless, here are links to these forms, which I encourage every Veteran or family member to review:

    • Veterans wishing to hire a service organization can use VA Form 22
    • Veterans wishing to hire an attorney can use VA Form 22-a.

    Replacing VA Form 22 and VA Form 22a

    Yes, these forms can be used to change and revoke a representative.  Even more important, these VA forms can be changed, edited and updated on a regular basis.

    For the Veterans claiming they are not getting mail from the VA, likely updating one of these forms will improve the flow of information.

    If you have questions or need help, please contact me directly.

  • Unemployment Luck: Tip #007

    Unemployment Luck: Tip #007

    Recently, I have worked with a number of applicants trying their hand at being lucky.  In other words, leaving their appeal up to chance.  For this reason, I believe the unemployment tip referenced below is going to save people from making a bad choice.

    Unemployment Tip # 007 –  Being lucky versus good is a horrible strategy.  Instead, assume the unemployment law judge is not looking out for the Applicant’s best interest and know which rule proves one’s eligibility.”  

    In other words, hoping an ULJ will pick the right law to grant benefits is a loosing strategy.  Instead, focus on the strongest argument favoring benefits.

  • Interview for the Unemployed, Tips and Thoughts

    Interview for the Unemployed, Tips and Thoughts

    An interview for the unemployed is stressful.  Answering questions about a job loss makes this process even more difficult.   This is especially true when a person does not know how to classify the events that led up to their job ending.

    Because most folks who contact me are unemployed, I am very familiar with this type of anxiety.

    Being Scared about the Unemployment Label

    No, I do not think workers should be scared of referring to their job loss as a lay off.  Really, what alternative do we have?  It happened and now we need to move on, right?  On the other hand, we cannot make the situation worse by falling for a trap.

    For one, a layoff and getting fired is practically the same thing.  The distinction people get stuck on, are the words and events that led to their job ending.

    Whether an employer is honest or they stretch the truth to avoid unemployment taxes imposed by Minnesota, is not a problem or issue a person should bring to their next interview and job.  Please read on, for more tips.

    Interview For the Unemployed Worker:  Resume

    Personally, I like to see people focusing more on their skills and talents within a cover letter, resume or application than a negative.

    First, time and space is of the essence.  Second, the interview process is likely the better venue for discussing a job loss.  Third, a person gets hired based on their talents.  You already know this, but I will say it always: focus on your positive attributes instead.

    Applications for Unemployed Workers in Minnesota

    Surprisingly, I meet with a lot of people who cannot wait to fill out a job application and use their past employer as a reference or summarize a storyline that led to their job ending.  Don’t do this!

    Would a divorced person encourage a potential date to ask their ex-souse questions about a past marriage?  Of course not!  Your divorced?  Ok, lets move on.  Likewise, I believe the same is true for folks filling out applications and work past the unemployment process.

    That said, a person who is divorced shouldn’t lie about being married.  And, job applications shouldn’t lie about having a past job.

    The trick is keeping it simple.  In my experience, a lot of employees, workers, managers or whatever, are able to state with a clear conscious that their job ended because they were laid off.  Period.  When the situation is more complicated, I think seeking help is highly encouraged.

    Unemployed Workers Getting Interviewed

    Every person who has suffered a recent job loss (quitting or otherwise) should take their unemployment benefits seriously to assist in their transition.  After that, focus on acquiring an interview.

    The difference between a bad interview and a great interview is preparation.  Unfortunately, unemployed workers are failing at the interview question about their job loss.  Sometimes, future employers use “why do you want this job” as another way of asking about your job loss.  Do not fall for this trap.

    Luckily, you read this article and contacted me directly.  Limiting an answer to a lay-off is so much easier than talking about a bunch of events which only a significant other and an attorney should know about.  Perhaps you agree.

    Either way, I wish you the very best.

  • Evidence for Unemployment: Tip #006

    Evidence for Unemployment: Tip #006

    Evidence for unemployment can take on many different forms. For some, this means seeking a positive review, while others want copies of a video tape. That said, don’t underestimate the power of the spoken word.

    Unemployment Tip # 006 –  An Applicant’s testimony can sometime be more important than other forms of evidence, like a document, e-mail, etc.  When faced with an appeal, verbalizing facts in a precise order can help Applicants win their appeal.”  

    Unemployment Lawyer

    Unemployment Help

    Contact Now

    After pinpointing one’s own testimony, then start the process of collecting evidence.  Perhaps this means making a decision about a subpoena. Either way, here are a few examples of evidence:

    • An employee handbook,
    • Job posters,
    • History of other employees in a similar position,
    • Positive performance reviews, etc.

    Assuming evidentiary rules are followed correctly, when a person or employer submits evidence, the unemployment office will mark it with a watermark and return it to each party. Usually, this is done using a yellow envelope.

  • Minnesota’s Drug Testing Laws

    Minnesota’s drug testing laws for employees stems from Minnesota Chapter 181.  Sometimes, folks might hear the testing rules called DATWA, or Minnesota’s Drug and Alcohol Testing in the Workplace Act.

    As you can see, this rule is extremely complex, and every situation will produce a different set of facts and or outcome.

  • My Corporate Trustee Increased Their Fees

    My Corporate Trustee Increased Their Fees

    When I meet with families for the first time, identifying a corporate trustee within a revocable trust is always an unusual conversation.

    Before describing why, lets quickly outline what it means to identify a third-party trustee that is unrelated to you and your family.

    A corporate trustee is a business or entity (like a bank or wealth management company) that agrees to manage and administer a trust.  As you might suspect, this agreement is based on paying a service fee.  Generally, this is where people back away.

    Really though, I like the idea of engaging an entity as a back-up to the back-up for one reason:  just in case we all die.  Here is what I mean.

    Corporate Trustee:  Everybody Dies

    Like you, I do not like to think about my death.  Taking this nightmare to the next level, I do not like the idea of thinking about dyeing in a car accident with my closest family matters (minus the one grandchild  or child hanging out with a babysitter).   Far fetched, but possible.

    Anyways, I love the idea of making sure my trust has the power to implement Minnesota statute 501C.074, versus making a trustee or guardian seek authorization from a court to fill a trustee vacancy.  I like this idea because I want my assets distributed amongst my beneficiaries versus court fees.  Also, I cannot predict the far fetched future (North Korea?).

    Even better than adding the Fancy in Trusteeship or Successor Appointment rule is helping out by selecting an entity to act as my corporate trustee.

    Thus, updating a revocable trust to account for vacancies makes sense.

    Corporate Trustee:  Running from Fees

    Of course, the one reason people balk at the idea of selecting a corporate trustee (even as a back-up to the back-up) is the fear of paying corporate fees.  Certainly, I agree.  If ATM fees make you go crazy, corporate trustee fees might make you sick.

    On the other hand, family dynamics can be the deciding factor.  Some realize their family is not sophisticated enough to manage a trust, while others are fearful of family members arguing over silly things.

    The intentions of the settlor (the person who made the trust and identified a third party to manage it) is what matters most.  In my experience, having a person with specialized knowledge to administer a trust can be a breath of fresh air.

    Corporate Trustee:  One of My Favorite Approaches

    The value of thinking through the issue of selecting a corporate trustee is sometimes overwhelming.  Although not for everybody, one of my favorite approaches is selecting a personal friend or family member as my trustee and making a corporate trustee their partner.  In other words, both serving as co-trustees.

    Personally, I think this accomplishes a handful of goals:

    • Reduces fiduciary stress,
    • My trustee can lean on an entity I pre-selected,
    • And, if my trustee gets sick or is no longer able to help, they have a back-up too.

    Final Thoughts

    Just to be clear, a person wishing to create a revocable trust is not required to select or identify a corporate trustee.  Instead, I only bring to your attention because it is a nice alternative for people concerned about selecting a trustee or not knowing enough trustworthy people to manage their affairs.

  • Quit or Discharge: Unemployment Tip #005

    Quit or Discharge: Unemployment Tip #005

    Quit or discharge is a confusing question. In fact, it isn’t even a question. Instead, it is a legal issue often addressed by an unemployment law judge.

    Sometimes, workers and employees are confused whether they quit their job or were fired.  Applicants should never argue they do not know whether they quit or were terminated.  Instead, find the unemployment law that best supports eligibility. 

    Unemployment Tip # 005 –  When the reason a job ended is an issue, Applicants should never argue that they do not know. Instead, find the unemployment law that best supports eligibility.”

    Before selecting quit or discharge, know that every question is a trick question.  Really though, employees seeking unemployment benefits can take their case under control by knowing which element of rule 268.095 applies to them and why.

  • Grandma’s Revocable Trust Before She Went Into a Nursing Home

    Grandma’s Revocable Trust Before She Went Into a Nursing Home

    When I think about Grandma’s revocable trust, I think about her independence.  Wow, she is unbelievably strong and mentally sharp.  Like you, I love my grandmother.

    That said, there will be a day, when a grandmother will need help from her trustees.  On that day, her trustees will be asked to determine whether Grandma should fund a different kind of trust, to avoid the agony of handing her assets over to the State.

    Here are two possible alternatives:

    • Supplemental Needs Trust
    • Special Needs Trust

    If you have the time, lets take a quick look at these types of documents.

    Supplemental Needs Trust for Grandma

    As an alternative to Grandma’s revocable trust, consider a supplemental needs trust.  A supplement needs trust helps grandma pay for needs not provided by a government-funded program.  These types of trusts are for people of any age, provided they are not 65 years old or older, have a disability and are living in a long-term care facility.

    In other words, if Grandma wants to utilize a supplemental needs trust, she needs to make it happen before she enters a nursing home. Between you and me, I wish this wasn’t the case.  But, Minnesota law 256B.056 tells us differently.  Otherwise, families risk a State audit or declaration document and exposing assets to creditors (like the nursing home).

    Even more cool, is the fact these types of trusts allow for beneficiaries, like children and grandchildren.  Provided the beneficiary themselves doesn’t establish the trust (or act as the trustee), this type of estate planning tool can provide a lot of relief.

    Special Needs Trusts for Grandma

    Another alternative to Grandma’s revocable trust is a special needs trust.  Unfortunately, these types of trust documents are far more strict and less exciting.  Why?  Because Grandma’s assets usually end up with the State or health care provider.

    None the less, a Special Needs Trust is for Grandma when she has a disability and is older than 65 years of age.  The reason Grandma might like this type of setup is because it protects her assets through her lifetime.  For those wondering, the rules applicable to a special needs trust is a fancy law called the Omnibus Budget Reconciliation Act of 1993, or OBRA.

    Grandma’s Revocable Trust is Easy to Covert

    If you stepped away to help your grandma with the cable tv, know that her trustee should be able to covert or transfer assets from a revocable trust to a trust document described above.  Really, it boils down to whether or not Grandma has a disability and her age.

    Personally, I like the idea of adding an amendment or clause to a revocable trust granting the trustee this type of control.  Other times, people create a supplemental needs trust, fund it accordingly and lean on their trustee(s).

  • Unemployment Tip for Covered Employment Appeals

    Unemployment Tip for Covered Employment Appeals

    Covered employment is a significant issue you didn’t know existed. The issue is whether your job was counted as “covered employment” or the opposite, “noncovered employment”.

    Noncovered employment isn’t good for benefits isn’t good for benefits. This specific term means a person is not eligible for unemployment. Sometimes, employers will argue that a certain job was “noncovered employment” to avoid or reduce taxes.

    Unemployment Tip # 004 –  Applicants should always be prepared to make the argument that their job was covered employment.

    Unemployment Lawyer

    Unemployment Help

    Contact Now

    Applicants who see this issue raised are using those working as a contract employee or as an independent contractor. Other jobs that run into problems are those aligned with the State of Minnesota.

    Unfortunately, Applicants in Minnesota are often tricked into assuming it doesn’t matter.  For those wishing to acquire benefits, it matters.

  • Transgender Veteran Claims and Appeals for VA Benefits

    Transgender Veteran Claims and Appeals for VA Benefits

    Transgender issues in the military received a swift kick in the teeth this week.  On the other hand, because the laws are poorly developed and unclear, transgender military veterans have an advantage.

    Personally, I believe Veterans willing to put forth the work with their VA claim, are going to see a lot of positive outcomes.

    Most military vets know this, but it is worth repeating.  Seeking VA benefits is hard.  Adding a  gender identity issue expeditiously increases the complexity of the claim.  But, it is certainly worth it.

    But, most of this success will not come to fruition until the military veteran is discharged and a claim is filed with the VA.  

    Transgender VA Claims

    As of the date for this post, there are literally, tens of thousands (+10,000) VA cases to search and read.  Would you believe there are only two (2) cases that speak directly to gender identity and transgender issues?

    For those curious, one veteran was somewhat successful (they confirmed a 30% disability rating for PTSD), while the other veteran spent years making the same error.  The value in bringing this to your attention, is to learn from their successes and mistakes.

    Yes, I commend both military veterans for seeking and appealing their VA benefits.  I believe both transgender veterans failed at being more successful with their claims because they focused on the wrong issues.  Here is what I mean.

    Why Veteran Gender Identify Claims Were Denied

    Without knowing the background for either transgender veteran, I believe the appeals were rejected because they, the veterans, focused on events prior to their military service versus issues during their service.  Outlining events related to being a transgender veteran are important.  Attaching a documented concern while serving is more important.

    Successful Transgender VA Appeals

    It is reported that 15,500 people serving in the military right now, claim they have a unique and special gender-related issue.  In my role as a veteran advocate, I cannot stress this enough: gender isn’t the primary issue.  Instead, I believe successful claims look something like:

    • Veterans outlining a physical ailment or injury, or
    • Transgender vets finding a primary mental health issue that started or was aggravated while serving.

    Additionally, military veterans are encouraged to find long-term support outside their VA claim.

    Physical and Mental Health Issues

    Of course, gender definitely highlights physical and mental impairments.  Every veteran has a gender.  Whether the veteran sees value in assigning a term like transgender or gender dysphoria isn’t the starting point for seeking a claim for benefits.

    Instead, start with a physical or mental health issue.

    Long Term Support for Transgender Claims

    Here is what I mean by long-term support:  finding a veteran advocate that can handle a fairly lengthy VA appeal process (both BVA and Court of Appeals).

    Again, whether there is a gender issue or not, a VA claim can take years and years, and worth the fight.  Please contact me directly if you need help with your claim.

  • DOD doesn’t Trust Your Military Power of Attorney Forms

    DOD doesn’t Trust Your Military Power of Attorney Forms

    Military Power of Attorney Forms (POA) are different for each branch of the military.  As I will describe below, I really believe military personnel should have a military version of their POA and a civilian power of attorney.

    None the less, lets quickly break down the military and civil side.

    Because each branch is different, each member of the military is encouraged to take three steps when trying to formalize a POA:

    1. Contact their local JAG office and schedule an appointment,
    2. Follow the formalization steps recommended by JAG, and
    3. Seek out an non-JAG attorney and acquire a document exclusive to a permanent residence

    Military Power of Attorney Forms

    Nobody really knows when or for how long they will be on or at a military installation.  Those living state side or elsewhere are always prone to the requirements of a military installation.

    As a result, I believe a quality estate plan for members of the military includes a completed military power of attorney form.  So you know, each branch uses a different form.

    Thus, here are links for each branch.

    Interestingly enough and as the websites suggest, Marines are trusted with an actual form while the remaining four military branches are asked to make an appointment with their local JAG office.

    Even so, Marines are encouraged to seek out their JAG office too such that they can properly formalize the form suggested by the USMC.

    Civil Power of Attorney Forms

    Lets be clear, using an estate planning document like a POA isn’t used to collect the mail.  Instead, it is used to help us when we cannot help ourselves.  Whether we are sick, injured, or deployed, these types of documents are life-savers.

    For the military personnel with a Minnesota, a free power of attorney form can be found here.  Really though, acquiring a short-form power of attorney and more significantly, a durable power of attorney is a much stronger approach.

    Again, why?  Because those serving in the armed forces (including Guard and Reservists), want to reduce problems and headaches on their family in a time of urgency.

    Why Military need more than one form

    I wish this wasn’t the case, but encouraging landlords, banks, doctors and other professionals who do not work on military bases or near a military installation is challenging.  Also, a lot of folks serving in the armed forces have property (bank accounts, real estate, cars, stuff) spread out.  In other words, we cannot always bring all of our possessions with us when we travel abroad or get deployed.

    For example, if I joined the military and my spouse brought an Air Force power of attorney form to an insurance agent in Minneapolis, the likelihood of the agent understanding what they were looking at is unlikely.  As a result, they might not honor the form.

    On the other hand, if I brought a power of attorney form consistently used in Minnesota (like in this example), I am less likely to have a conflict.

    Again, I certainly wish this wasn’t the case, but experience tells me otherwise.

    Military Power of Attorney Forms Risks

    The risk of having more than one form that shares or expresses a power is contradiction.  If your military power of attorney form contradicts a non-military power of attorney form, then the end goal can come to a halt.

    Here are a few examples of Minnesota military members contradicting their power of attorney forms:

    • Allowing or denying decisions while unconscious,
    • Allowing or denying decisions while incapacitated,
    • Requiring accounting practices, and
    • Durable power of attorney form contradicts a shorter version power of attorney form.

    Why DOD Doesn’t Trust You?

    Any 18-year-old person can find a power of attorney form and fill it out on their own behalf.

    Compare this to a member of the military.  Members of the military are forced to answer a bunch of questions and seek an appointment with their local JAG office.  And, Marines are granted access to a POA form while other branches are not.  I am in favor of customer service, but sometimes we need a POA immediately.

    Other times, a member of the military needs confirmation that their possessions back home are protected even more than their possessions within the confines of a military base.

    I believe taking charge of my own affairs is the best process.

    Military Power of Attorney Forms for Veterans

    No, the above referenced forms are not necessarily the same forms that veterans of the military should be using.

    Therefore, if you are serving in the military and need estate planning support, please contact me directly.

  • Using a Power of Attorney While In Hospice Care

    Hospice care can be a difficult position for planning needs. Using a power of attorney to change a will or estate plan in hospice care is hardly ideal. Now add an element of incapacity or duress, and you have a recipe for disaster.

    On the other hand, perhaps there are significant reasons, even monetary reasons, that a change needs to occur. My source of truth comes from situations when people have tried and died. Luckily, a well drafted durable power of attorney form can reduce the potential for misery and help our love ones move forward under any moment of stress or condition.

    Evidence For Capacity

    Evidence for the mental capacity isn’t the first thing a person or family thinks about when visiting their loved one. Capacity isn’t necessarily something that is documented. Some families use medical note and doctor’s opinions. Others utilize eye-witness accounts. Even better, the documents formalized include critical language and sworn by a notary.

    Mental Capacity In Hospice Care

    In Minnesota, the intent of the person is always a controlling factor. Creating new documents in a hospice care facility is hardly ideal. As an example, let’s assume a court scrubs or scrutinizes a relevant document.

    Why?  There was a major Minnesota case called In re Estate of Healy.  Ultimately, this case tells us the testator (the person who died) was required to know the nature and extent of the document they were signing.  If even for a brief second, the person dying and changing their will must have a thought in their mind long enough, that a rational decision was made.

    When a power of attorney document or will is reviewed by a court, whether a district court or probate court, the referee is looking at the mental capabilities of the person who had created the document.

  • Submitting Job Applications to Remain Eligible for Unemployment

    Submitting Job Applications to Remain Eligible for Unemployment

    Submitting job applications to remain eligible for unemployment benefits is an art.

    A lot of unemployed workers fail at giving the right answers when audited on their resume submission process.  Thus, I want to quickly address this issue.

    Job Applications and Unemployment

    As you can read under Statute 268.085, workers and employees are required to to seek suitable employment while unemployed.

    On the other hand, this unemployment rule fails to identify a specific number.  As a result, you have a very ambiguous rule.  For those who have kept up, this is what I tell newly unemployed workers.  The hard part about an unemployment audit is this:  one never knows when or if it will come.

    For this reason, I like the idea of logging hours specific to the job search process (looking, applying, following-up, networking, etc.) versus the actual job submission process.  After all, careers and jobs are not alike.

    On the other hand, this I know:  the number of jobs applied for should never be zero (0).  For how long though, that is a more significant question, which is why folks generally need advice for their specific situation.

    Logs for Job Applications

    For those still stuck on the logging process, lets keep it simple, but spot on.  A common theme for those that I represent is replacing working hours with job searching.  In other words, if an applicant worked 40 hours, then replace those same 40 hours [if possible] with the job search process (looking, applying, following-up, networking, etc.).

    Job Applications and Unemployment Audits

    As much as it pains me to say it, having an unemployment account audited is a real thing.  In my experience, one of the heaviest areas focused on by auditors includes job applications.  For this reason, I encourage all receipts of unemployment benefits (especially those in Minnesota) to keep their a folder on their computer exclusive to their job search process.

    I agree, there is likely a lot of gray, which again, is an issue that is going to be situation specific.

    Finally, for those wondering how long they should keep this type of information, I recommend one of my past posts on this very topic.

  • Work Force Center: Unemployment Tip #003

    Work Force Center: Unemployment Tip #003

    Continuing on with my new series for unemployment tips, let’s address the work force center. For some reason, newly unemployed workers want to spill their story with the workers and staff members assigned to the workforce center they happen to visit.

    Unemployment Tip # 003 –  Second guess all advice coming from the Work Force Center regarding an appeal or how to handle a claim.

    The call center at DEED and the various workers at the work force center are the eyes and ears of those who deny claims.  Hopefully, applicants do not find out the hard way.  

    So, before contacting the work force center for help, consider the ramifications of doing so.