Incompetent Vets

[Berta]

I hope I have been quick to point out here over the years that VA "incompetence" findings do not mean some estranged cousin you never see can come in and get your stuff.

True incompetence is a legal finding by a court and a judge- in VA's case I always felt it was a good way to protect vets from being taken advantage of-and usually the spouse handles the money as the VA appointed fiduciary anyhow-

(and probably always handled the family income and debts before the VA comp too)

I felt it was a good idea until today-

http://vawatchdog.org/07/nf07/nfAUG07/nf081507-6.htm

It looks like the fiduciaries for these vets -in this news story -who go through some sort of investigation by the VA-to be approved as fiduciaries-

are by far less competent then the vets they are handling VA money for.

There is a follow up to the Bonus gate story also at Watchdog today-ironically-

Bonuses were paid out to various VA employees-some who sat on the very committee who picked who would get the bonuses-

I think these are the people who need "fiduciaries"

I am sure many vets and widows would gladly volunteer to control VA bonus money that these employees-who 'work on' and control VA claims- might get- might------it is being investigated---

I would stick these bonuses into an interest bearing IMO fund for deserving vets who need IMos to get a real medical opinion on their claims-instead of VA mumbo jumbo-

and send the VA employees back to school to take Reading 101.

A fiduciary who cannot account for someones money can be hauled into court-

then again- the vet's have no money to get lawyers because VA said the fiduciary could control their comp-

I think these vets have been harmed by VA and hope they could file FTCA claim against them.

They should ask VA to reconsider the 'incompetence' status and then find someone they can trust or handle the money themselves.VA's declaration of 'incompetence' is just BS anyhow.

And it also reflects that lack of leadership from Sec Nicholson as nothing was done in these cases to find out where that money went.

[free_spirit_etc]

Berta - I am really interested in the incompetence issue. That is one of the requirements of being granted the Post Death application for the Serviceman's Life Insurance.

The regs say that it was created to grant life insurance to vets who become incompetent from Service Connected disabilities and thus, couldn't apply for it during their lifetime.

But the way they are deciding it is that they don't count the point of time immediately proceeding death that a vet is incompetent - as if they didn't apply for it while they were alive and compentent - Congress didn't allow for it to be applied post death.

To qualify for the Insurance you have to be granted a SC disability (as it is supposed to be a means to get insurance for people who might have trouble getting other insurance) and you have to be in insurable health EXCEPT for you SC disability.

The way that they have been applying it - even if the service connection was granted AFTER death - the person had to be incompetent FROM a SC disability prior to their death - and the incomptency has to last UNTIL their death - and they DO NOT COUNT the incompetency that results immediately preceeding death.

There is even a case where the woman's cancer was granted SC AFTER death -but her husband didn't qualify because she wasn;t incompetent BEFORE her death - aside from possibly during her last illness which resulted in her death.

I will tell you for SURE - that if My husband's cancer gets granted SC - I am GOING AFTER THIS! And I will argue it up through the courts if I have to - and hopefully do something to STOP THIS CRAP!

If the VA drags cases out until the vet dies - and then precludes them from qualifying for the post death life insurance because they weren't incompetent at the RIGHT time or LONG enough - that is crap.

I think it should be where THEY would have to PROVE that you were entitled to the insurance and able to get it before they could deny your claim based on the fact that Congress didn't intend to consider the incompetence immediately before death to count.

For instance, in my husband's case - He was not elgible for the insurance UNTIL he was granted SC for a condition (applied for SC in 1998). By the time he was granted SC for ANYTHING,(and therefore eligible to apply) he had already been diagnosed with cancer (2000)- which even if he had applied at that time - he was not elgible as he was not in good health EXCEPT for his SC condition. By the time he would have been considered "insurable" (i.e. cancer free for two years or more) he had already passed the deadline to apply for the insurance (within two years of being granted SC for a condition). He applied for SC for the cancer - but was not granted SC before his death.

To me - I don't care if he was incompetent for 5 minutes before his death - He was precluded from purchasing the insurance BECAUSE of his SC condition (cancer) that had not been granted SC yet at the time he was eligible to apply for insurance, nor before his death.

So them quoting that stuff about Congress didn't intend for the incompetence a person had in the period right before death to be used - because the person hadn't purchased the insurance when they were competent.

But I also think this law should be changed. If you have to be granted SC before you can APPLY for the insurance - then IF you are granted SC DURING YOUR LIFE - then they should allow you to be granted insurance post death IF you were incompetent before the 2 year period to apply has expired.

But if they don't grant the SC until AFTER your death - you should be able to get the post death insurance (especially if that service connected disability CAUSED your death) whether you were competent or not because you weren't eligible to apply for it UNTIL you were granted the SC.

How in the world can they go on and on how someone didn't buy it while they were alive and competent - when they can't even apply for it without an SC connection?

TITLE 38 > PART II > CHAPTER 19 > SUBCHAPTER I > § 1922

( (1) Any person who, on or after April 25, 1951, was otherwise qualified for insurance under the provisions of section 620 of the National Service Life Insurance Act of 1940, or under subsection (a) of this section, but who did not apply for such insurance and who is shown by evidence satisfactory to the Secretary (A) to have been mentally incompetent from a service-connected disability, (i) at the time of release from active service, or (ii) during any part of the two-year period from the date the service connection of a disability is first determined by the Secretary, or (iii) after release from active service but is not rated service-connected disabled by the Secretary until after death; and (:) to have remained continuously so mentally incompetent until date of death; and © to have died before the appointment of a guardian, or within two years after the appointment of a guardian; shall be deemed to have applied for and to have been granted such insurance, as of the date of death, in an amount which, together with any other United States Government or National Service life insurance in force, shall aggregate $10,000. The date to be used for determining whether such person was insurable according to the standards of good health established by the Secretary, except for the service-connected disability, shall be the date of release from active service or the date the person became mentally incompetent, whichever is the later.

http://www.va.gov/vetapp95/files5/9523297.txt

The Board notes, however, that Congress has provided that RH

insurance can be issued after a veteran's death under

certain limited circumstances under the provisions of 38

U.S.C.A. § 1922(B) (West 1991). (RH Insurance pertains to

life insurance acquired by veterans with service-connected

disabilities and ARH Insurance pertains to gratuitous life

insurance benefits to veterans with service-connected

disabilities who are not competent to apply for such

insurance.) Basically, this part of the law was enacted to

provide insurance for a person who did not have other

Government insurance and who could not apply because he or

she was terminally ill. Section 1922(B) of Title 38, United

States Code provides that any person who could have

qualified for RH insurance under 38 U.S.C.A. § 1922(a), but

who: (A) did not apply for such insurance because that

person was mentally incompetent due to a service-connected

disability, either at the time of release from active

service or during any part of the one-year period from the

date the service-connected disability was determined by VA,

or after release from active service, but was not rated

service-connected disabled by VA until after death; and (B)

remained continuously so mentally incompetent until date of

death; and ©died before the appointment of a guardian, or

within one year after the appointment of a guardian; shall

be deemed to have applied for RH insurance and be granted

such insurance. 38 U.S.C.A. § 1922(B) (West 1991); 38

C.F.R. § 8.116 (1993). (As noted, Public Law 102-86 amended

38 U.S.C. § 1922 to increase the eligibility period from one

year to two years for veterans found eligible for RH

Insurance on or after September 1, 1991.) Essentially, if

the evidence demonstrates that the veteran was mentally

incompetent the time period for filing an application for RH

insurance could be extended. See 38 C.F.R. § 8.0(B) (1994).

Under the regulations applicable to ratings and evaluations

for service-connected disability compensation, a mentally

incompetent person is one who, because of injury or disease,

lacks the mental capacity to contract or to manage his or

her own affairs. 38 C.F.R. § 3.353 (1994). In this regard,

the Board notes that guidance for some of the questions in

this case may be found in a decision by a former VA

Administrator concerning the interpretation to be given the

term incompetence for purposes of 38 U.S.C.A. § 1922(B)

(West 1991). In this regard, the term incompetence has been

determined to exclude conditions present for a brief period

immediately preceding death. The brief periods of coma or

unconsciousness incident to a person's terminal illness,

immediately preceding death, are not considered a period of

incompetence for purposes of insurance under 38 U.S.C.A. §

1922(B) (West 1991). The Administrator's decision stated

that a sensible construction must be given to the law, and

that it would be an absurdity to hold that incompetency for

several hours or days prior to death was such as that

contemplated by the law if the veteran had not availed

himself of the right to apply for insurance while he had

ample opportunity to do so during his lifetime. The

Administrator's decision indicated that incompetency should

not be held to have existed because of conditions noted for

a brief period immediately preceding death or because of a

brief period of unconsciousness or a sedate condition which

only had a brief effect upon the veteran's mental processes.

Administrator's Decision No. 973 (Feb. 1, 1961). Thus, a

transitory loss of capacity to contract or manage one's

affairs would not be considered mental incompetency if there

had been no practical effect on the veteran's right to

obtain insurance benefits or upon the veteran's ability to

act on her own behalf with regard to applying for insurance

benefits.

http://www.va.gov/vetapp98/files1/9804101.txt

Analysis. In order to have been entitled to Service Disabled

Veterans' Insurance under the provisions of 38 U.S.C.A.

§ 1922(a), the veteran would have had to have filed an

application for such insurance during her lifetime. This is

the clear requirement of 38 U.S.C.A. § 1922(a).

The Board notes, however, that Congress has provided that

Service Disabled Veterans' Insurance can be issued after a

veteran's death under certain limited circumstances under the

provisions of 38 U.S.C.A. § 1922(B). (RH insurance pertains

to life insurance acquired by veterans with service-connected

disabilities and ARH insurance pertains to gratuitous life

insurance benefits to veterans with service-connected

disabilities who are not competent to apply for such

insurance.) This provision was enacted to provide insurance

for a person who could not apply because he or she was

mentally incompetent.

The record does not indicate, and it is not contended, that

the veteran in this case was incompetent. Inasmuch as the

veteran did not apply for Service Disabled Veterans'

Insurance during her lifetime, and she was not mentally

incompetent, the applicable provisions of 38 U.S.C.A. § 1922

provide no authority for entitlement to such insurance.

[Pete53]

The reason I object to the VA appointing a fiduciary is that they usually appoint a crony and rip the Veteran off. If a Vet is ruled incompetent he is much better off having a banker or even an advocate who gets paid for their help

[Jay Johnson]

The fiduciary program is a joke in most cases...the threshold for being declared "incompetent" is ridiculous to begin with. Unless a veteran requests financial help and/or the VA obtains PROOF of poor money management, then the VA should have NO business in the veteran's financial affairs.

These things are easy to prove by simply running a credit check to see if there are any financial issues.

The VA found my wife "incompetent" without ever having met with her or giving us a chance to fight the finding. Their basis was that "she was 100% for PTSD so she is automatically found incompetent to manage her finances". We found out she was in the program when a guy came to our house (unannounced...intentionally, which is great for a MST PTSD vet /sigh) for a "review" of her case (which is yearly).

It took 3 years of fighting to get her out of the program and almost cost her the 100% P&T rating she had already won.

This program should be completely scrapped and one the is totally separate from the VA should take its place......in other words, the VA should NOT be able to declare incompetency at all; that should be left up to the real legal system. However, they should keep a lesser program for veterans that "elect" to have the VA screw with their personal affairs at the potential cost of their disability compensation (which is a BAD idea, but there should at least be an option).

Seriously, I can't say enough bad things about this program......it's the worst thing the VA does and I can't think of how it would ever truly help a veteran in need. Signing away one's life, involuntarily, should be illegal.

[free_spirit_etc]

Social Security also has the "representative payee" program. But I don't think they actually rule you incompetent. But if they think you are not managing your finances - they can appoint someone to be your representative payee.

Actually when my son turned 18 - they asked if I still wanted to be his payee. I said No. I would let him get his checks. If we had a problem - we would deal with it.

So the checks come in HIS name - though I help him manage his money. They seem to have trouble understanding that. Hey. Give my son his money - and I will help him manage it.

But now - though he has signed papers over and over again appointing me as his REPRESENTATIVE with Social Security - I am told over and over again that they can't give me information unless I am his representative PAYEE. Some people will honor that my son has chosen me to represent him in his dealings with Social Security - but still wants to have the checks issued in HIS name. But most of them think that since I am not his PAYEE, I have no right to represent him.

Free