Determinations Of Incompetency And Competency.

[donews]

I found this while researcing last night.

I have seen a lot on Hadit recently about people being possibly considered incompetant and hope this information can help someone fight it.

§3.353 Determinations of incompetency and competency.

(a) Definition of mental incompetency. 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, including disbursement of funds without limitation.

(b) Authority.

(1) Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance (38 U.S.C. 1922), and, subject to §13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes.

(2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in §13.55 of this chapter; select a method of disbursing payment as provided in §13.56 of this chapter, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments as provided in §13.57 of this chapter; and authorize disbursement of the benefit.

(3) If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in §3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs.

© Medical opinion. Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations relative to incompetency should be based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency.

(d) Presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency (see §3.102 on reasonable doubt).

(e) Due process. Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in §3.103. Such notice is not necessary if the beneficiary has been declared incompetent by a court of competent jurisdiction or if a guardian has been appointed for the beneficiary based upon a court finding of incompetency. If a hearing is requested it must be held prior to a rating decision of incompetency. Failure or refusal of the beneficiary after proper notice to request or cooperate in such a hearing will not preclude a rating decision based on the evidence of record. (Authority: 38 U.S.C. 501(a))

[36 FR 19020, Sept. 25, 1571, and 40 FR 1241, Jan. 7, 1975, as amended at 42 FR 2069, Jan. 10, 1977; 58 FR 37856, July 14, 1993; 60 FR 55792, Nov. 3, 1995; 66 FR 48560, Sept. 21, 2001; 67 FR 46868, July 17, 2002; 68 FR 34542, June 10, 2003]

Edited April 9, 2008 by donews

[carlie]

Just for the record, SSA and VA are VERY DIFFERENT on the issue of:

Determinations of Incompetency and Competency.

A claimant may be considered Incompetent by SSA but considered Competent by VA.

I'm just posting this for Clarification.

About 8 or 9 months ago, I helped a veteran regain Competency to handle his VA funds,

he's incarcerated now, he started using his funds for Crack.

I swear, I surely wish I would have never helped him, he's at risk of loosing his 100% SC

and by the way -- he was P&T.

jmho,

carlie

[Berta]

Yep Carlie- some incompetent vet friends I have are very grateful for the incompetency designation.

Fortunately they all have spouses they trust to handle their funds.

I have one vet who I almost hoped VA would declare incompetent.

He spent 8 thousand bucks from a retro check at Elvis's house in Graceland when he won.

[Berta]

BTW all- if you are obtaining an Independent Medical Opinion-might as well get the IMO doctor to state that in their opinion you are fully competent to handle your own funds-

this way- it could stave off the same bull crap Josephine is going through-

It would be difficult for the VA to challenge what a real doctor says as to your competency when they write the retro check.

[Josephine]

Dr. Crowley wrote back and wanted to know

Incompetent about what? He wants a copy of the Judges

Order/grant.

I don't think he was too pleased.

Josephine