When a Veteran Will Be Appointed a Fiduciary for Benefits Purposes
If the VA finds you aren't competent to manage
money, it can appoint a fiduciary
to receive your checks for you.
The VAWatchdog Dot Org
Department of Veterans Affairs Veterans Fiduciary Appointments
The Congressional Research Service
Since 1998, under the Brady Handgun Violence Prevention Act of 1993 (Brady Act; P.L. 103- 159), the Department of Veterans Affairs (VA) has provided records on beneficiaries for whom a fiduciary has been appointed to the Federal Bureau of Investigation (FBI) for inclusion in the National Instant Criminal Background Check System (NICS). The NICS Improvement Amendments Act of 2007 (NIAA; P.L. 110-180) require VA to notify beneficiaries of the ramifications of mental incompetency determinations and a potential loss of their gun rights, as well as provide those beneficiaries with an avenue of administrative relief, by which they could appeal such determinations and have their rights restored. In the 21st Century Cures Act (P.L. 114- 255), Congress included a provision that codified certain VA procedures related to mental incompetency determinations and potential loss of gun rights.
The VA Fiduciary Program
I was taught that there are 3 great lies.
(1) Of course I’ll respect you in the morning darling.
(2) The check is in the mail.
(3) Hello, we’re here from the VA and we’re going to help you.
The VA fiduciary appointment program is as perfect an example of government overreach as you’ll ever find.
On the flimsiest of ‘evidence’ your VA will propose to appoint a fiduciary to manage your VA disability money. On the face of it, this doesn’t sound unreasonable and in some few cases a veteran does need some help with managing that VA money. As usual with your VA, nothing's as it should be.
The usual process of assigning a VA fiduciary to manage disability benefits is…
During the process of adjudicating your claim it is determined that you are likely to be awarded a 100% rating or more and that will result in a retroactive pay benefit of $20,000.00 or more. The end rating will probably have a significant mental health component but that isn’t always the case.
There will be a C & P exam scheduled to factor into the final determination of the ratings of the veterans claim. During the C & P exam the veteran is asked a question similar to: “How are your bills managed in your house? Do you pay them?” A question may also take the form of, “How much is your monthly income? What’s your mortgage payment? How much does your electric bill run in the summer?”
If you’re like most of us you’ll reply something along the lines of: “My wife pays the bills. It’s just easier for one of us to do the checkbook and she’s better at math than I am.” And that’s the truth for most of us who are married or living with a committed partner, it really is easier if one person takes the responsibility of paying the usual bills and managing the checkbook and credit card accounts.
To your VA that answer is the signal that you are incompetent to manage your own financial (and some other) affairs. Based on that evidence alone, VA will propose to assign a fiduciary to you.
If the rater managing your claim makes the determination that it is likely that you are eligible to be appointed a VA fiduciary you’ll get a letter and/or a phone call to let you know that VA “proposes” that you be appointed a fiduciary.
This “proposal” is not a decision and that alone takes away some of your rights to appeal...according to VA you have no appeal rights during the process and unless and until a decision is made you have little or no voice.
This begins an investigation into your personal financial history. You’ll be scheduled a visit in your home and a VA field agent will want to complete some paperwork and ask you a number of questions.
The agent will ask you if there is a close relative or someone who you would prefer to be appointed as your fiduciary. In theory VA should consider your spouse or a parent or even a sibling to manage your finances before they appoint a stranger but the criteria to be appointed can be challenging.
Any blemish on a credit history or even excessive traffic violations can eliminate your choice to be your fidu. It’s my experience that VA would much rather appoint a “professional” fiduciary than a relative since they’re just easier to deal with.
Being sued by my HOA. I allowed my son and his wife to live in my home when they fell on hard times from COVID-19. They are under 55 years of age and no one under 55 is allowed to live there under my HOA rules. I didn't know about this rule at the time. The HOA tried to fine my wife and I for letting them live there. I have since moved into the house to avoid this issue, but the HOA has taken us to court and still wants to fine us and collect attorney fees. We cannot afford an attorney as I’m a disabled vet living on SS.I contracted COPD from working at the World Trade Center site. Went to court and the Judge gave us till the 20th of October to answer questions and submit questions to the HOA. I need help on what questions to ask and how and to who I need to submit the questions to. Plus what forms to use and where to get them.
You and many others continue to confirm my belief that I've been wise to avoid purchasing a home in any HOA community. I get an awful lot of email from veterans who run afoul of their HOA rules and regs and those HOA boards can be brutal.
You say you didn't know the HOA rules wouldn't permit your underage son and family to live in your home. That's a real problem. I think you'll have a hard time convincing a court you didn't know.
Every HOA community has very strict rules about who is eligible and under what circumstances any person may use your property. I believe that to be the most common rule of any HOA community and I'll have to assume you signed a binding contract agreeing to that.
Thus, I have no good news for you.
While I empathize with the fix you're in and I deeply appreciate that you've served your country honorably, you need some professional legal help and you'll probably have to pay out of pocket for it.
There aren't any instant breaks or discounts for veterans when you're dealing with civilian problems and your HOA is a civilian problem. If you're a homeowner and your household income is over the federal poverty limit, you'll likely have a challenge ahead of you to find any discounted legal help. Because of the COVID pandemic many agencies that may ordinarily be available to help you aren't.
You need a lawyer to represent you...there's just no getting around that. If you are eligible because of your low income and assets, you can seek help in your community via legal aid programs, law schools that may be nearby and by searching the Stateside Legal site for help in your region.
If I were you I'd be on the phone right now with local attorneys to choose one who may be willing to help you and also to make fee arrangements. Good luck sir.
Hello Jim. I filed a claim 6 years ago for lung granulomas and severe obstructive air flow from the lungs due to asbestos. I use inhalers and have shortness of breath. The VA conceded asbestos exposure during yard periods on my old ship and on my last decision, but came back saying they couldn’t fully grant my claim. They are now sending it back to the BVA in D.C. Does this sound like I’m getting any closer to getting the granted decision I feel I’m due? Thank you for your time.
I wish I had the power to tell you that you're getting closer to prevailing in your claim. Unfortunately, my crystal ball is out for repair. What I can tell you is that if you don't have a veterans law attorney representing you, your chances of winning are less than if you had professional representation.
It's proven year after year that attorney representation is the edge when it comes to your BVA appeal. Good luck!
The VA Fiduciary Program
I am the fiduciary for my VA 100% disabled service connected son . He is considered permanent and total . Starting January 1, 2020 he will receive his first check for approx $3,200.00 per month counting his one child as a dependant. Before he was awarded VA disability benefits, he was unemployed and quite mentally unwell for several years . He lives with me and I have fully supported him. During that time, his ex-wife who lives out of state was able to get a judgment for $700.00 per month in child support .
I don’t understand how this was accomplished as my son has not been able to work since his separation from the military . The arrears in child support have built up to an enormous amount . I have , though, out of my own monies, for the last 4 years , sent my ex-daughter in law each month $150.00 for the support of my grandson . I have also purchased most of my grandson' clothes , toys , etc. I have done my best on my limited income . Now that my son will finally have his own income from VA disability, do I have the right as his fiduciary to begin to send my ex-daughter in law more money for my grandson's support? and would child support have the right to garnish my son's check for back payments ? I don’t want to do anything wrong and, at the same time, I need to protect my son’s monies which have been placed in my care . What advice or guidance can you give me ? Thank you.
If you are appointed as his fiduciary, he will not receive his first check in total. VA will withhold much or most and allow you to pay bills according to the agreement you'll work out with your VA contact.
As the fiduciary you have the legal responsibility to pay his lawful bills. He owes a set amount of money, ordered by a court, to care for his children (your grandchildren) and that money must be paid just as if it were any other bill. If the money isn't paid and the former spouse files the appropriate paperwork, the VA will apportion (garnish) money from his benefits and send it directly to her. That happens every day at the VA.
The VA gives disabled veterans money to care for themselves and their families. When divorce happens, that doesn't release us from those obligations.
As the fiduciary it is expected that you will pay those required bills in a timely way. If you don't and the ex raises a fuss, VA can and often does take the fidu responsibility away from the family member and gives it to a professional like a lawyer or a banker...once that happens, he loses all control of his money. If he disagrees with the amount of court ordered child support and alimony, he must return to the family court and seek a modification...otherwise the bills have to be paid.
Since the VA adopted the new mileage application via the internet, I haven't received any travel money. I checked with my travel clerk and he told me that there is a big back log here in Florida. Have others experienced this problem? Thank you Jim.
I'm in Florida so I feel your pain.
We're supposed to be reimbursed a per mile amount for certain travel to and from medical care. In my time with VHA I've seen long lines and over an hour wait to receive a few dollars gas money. Then we went to a fill-out-the-form system. The check-in kiosks were introduced a few years back and those worked well other than you had to remember to sign out and sign in again to submit the travel voucher.
Not all that long ago I checked in to my small clinic and the kiosks were unplugged and parked in a corner. I was told to check in the old school way and only when I asked, I was given an old form to complete for travel pay. I was told the kiosks were gone forever.
I returned to that clinic 2 weeks later and the check in kiosks were back, plugged in and ready to go. There was no option for travel reimbursement, I was told to go to the Internet and figure it out. I haven't seen any deposits either.
I don't have any answer for you other than...welcome to your VA. They care!
Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits.
Jim writes extensively about VA and Social Security disability benefits.
Jim's Mailbag is a regular column featured at Stateside Legal where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
n. Under federal law, persons who are “adjudicated as a mental defective” are
ineligible to ship, transport, receive, or possess firearms or ammunition.
Your Department of Veterans Affairs worries about you and how you spend their...er-uh...your money.
If you are about to win a claim and there is a lot of retroactive pay due you (over $20,000.00 or thereabouts) your file will get a look to see if you are competent to manage that money for yourself.
If VA determines that you are incompetent, not only will you not see your retroactive pay, you won't see much of anything in the future once the VA appointed fiduciary takes over your money. Even if the VA appointed your Mom as the fidu, you still won't see the money because Mom has to get approval from the VA to spend anything and if they don't like how she wears the fidu hat, they fire her and appoint someone else...a stranger.
VA isn't likely to appoint anyone you like to be your fiduciary. VA will do background investigations and credit checks on anyone who volunteers to become your fiduciary and even speeding tickets may be used to disqualify them.
How does VA determine whether you are competent to manage your finances? During a routine C & P exam the examiner will ask you a few questions about your finances; How much money does VA deposit for you each month? How much is your rent? What are your utility bills running recently? What do you pay for your car insurance? If you can't answer, you lose. You can't just say, "Well, my spouse handles all that so I'm damned if I know." You'll see a fidu PDQ.
It's easier to appeal and interrupt the process as soon as you receive notice of a potential fidu appointment. Once the fidu is appointed and the deal is done getting rid of one is cumbersome and challenging. You don't lose only the control of your money, you lose your 2nd Amendment Rights too. Incompetent veterans can't own or even be in the same house as firearms.
You guessed it. If you can avoid the appointment of a VA fiduciary, you should.
By The Numbers - How This Works-What To Do
1) You receive notice that VA is proposing to appoint a fiduciary. You are shocked and you do not agree. This is only a proposal, not a decision. You have the right to appeal.
2) DON'T PANIC! Sit down and read the letter very carefully. Read it again. There is valuable information in the letter you received.
3) Complete a Notice of Disagreement (NOD) form.
4) Mail the form using Certified Mail, Return Receipt Requested. Do not use anything other than Certified Mail!
5) Do not delay! Don't run around asking everyone what to do.
Don't try to collect statements from anyone like family or friends. Don't do anything but get the letter in the mail and contact a veterans law attorney.
6) Once VA gets the NOD form, they will reply to tell you that you can't file a NOD yet because no decision has been made. Don't worry about that. Your NOD has notified them that they have made a mistake. You are now on record with the disagreement.
7) Wait patiently. After VA receives your NOD they will probably schedule you for another C & P exam. During this C & P exam you will be asked about how you manage your finances. Answer truthfully and completely.
8) But first... Contact A Veterans Law Attorney For Help