Competency/incompetency

[carlie]

M21-1MR on Evaluating Competency

http://www.warms.vba.va.gov/M21_1MR.html

Chapter 8 - Competency, Due Process and Protected Ratings

Section A. Evaluating Competency

Overview

In this Section This section contains the following topics:

Topic

Topic Name

See Page

1

Guidelines for Evaluating Competency

8-A-2

2

Considering Competency While Evaluating Evidence

8-A-4

3

Process for Making Competency Determinations

8-A-6

4

Changing Competency Status

8-A-8

5

Evaluating Competency in Special Circumstances

8-A-10

1. Guidelines for Evaluating Competency

Introduction This topic contains information on the guidelines for evaluating competency, including

· who has the authority to determine competency

· the effect of judicial findings on the rating activity

· presuming competency

· making a finding of incompetency, and

· considering the Veterans Service Center Manager’s (VSCM’s) opinion.

Change Date December 13, 2005

a. Who Has Authority to Determine Competency The rating activity has sole authority to make determinations of competency and incompetency for Department of Veterans Affairs (VA) purposes.

Reference: For more information determining incompetency, see

· M21-1MR, Part III, Subpart v, Chapter 9, and

· 38 CFR 3.353(b).

b. Effect of Judicial Findings on Rating Activity Judicial findings of a court with respect to competency of a veteran are not binding on the rating activity.

However, if a veteran is declared by a court to be incompetent, develop all necessary evidence for a rating determination.

c. Presuming Competency In the absence of clear and convincing evidence to the contrary, presume that a person is competent.

Reference: For more information on presuming competency, see 38 CFR 3.353(d).

Continued on next page

1. Guidelines for Evaluating Competency, Continued

d. Making a Finding of Incompetency A finding of incompetency cannot be made without a definite expression by a responsible medical authority, unless the medical evidence of record is

· clear

· convincing, and

· leaves no doubt as to the beneficiary’s incompetency.

Reference: For more information on medical authority in a finding of competency, see 38 CFR 3.353©.

e. Considering the VSCM’s Opinion After development of information with regard to social, economic, and industrial adjustment, the Veterans Service Center Manager (VSCM) may be of the opinion that a beneficiary rated, or proposed to be rated, incompetent is actually capable of handling, without limitation, the funds payable. In this case, he/she will refer the evidence and finding to the rating activity.

The rating activity should consider the VSCM’s finding as new evidence and, after any necessary additional development, prepare a rating based on the evidence of record.

Reference: For more information on procedures related to evidence of incompetency, see M21-1MR, Part III, Subpart v, 9.B.

2. Considering Competency While Evaluating Evidence

Introduction This topic contains information about evaluating the evidence and considering the competency of

· veterans

· helpless children, and

· other beneficiaries.

Change Date December 13, 2005

a. Considering the Competency of a Veteran If the claimant is a veteran, consider competency an inferred issue

· in every case of a totally disabling mental disorder, or

· if other evidence raises a question as to the beneficiary’s mental capacity to contract or to manage his/her own affairs, including disbursement of funds without limitation.

Reference: For more information on inferred issues, see M21-1MR, Part III, Subpart iv, 6.B.3.

Continued on next page

2. Considering Competency While Evaluating Evidence, Continued

b. Considering the Competency of a Helpless Child If the claimant is a helpless child, the rating activity must resolve the issue of competency for a child over age 18, because entitlement depends upon permanent incapacity for self-support due to physical or mental disability.

If incapacity is due to mental disability

· consider competency a factor in determining whether the child is permanently incapable of self-support

· determine competency under the same criteria applicable to veterans, and

· record the determination in a rating.

References: For information on

· due process procedures in incompetency cases, see M21-1MR, Part III, Subpart v, 9.B.6, and

· conditions which determine permanent incapacity for self-support, see 38 CFR 3.356.

Note: Since the incompetency procedures referred to in M21-1MR, Part III, Subpart v, 9.B.6 are for payment purposes, do not apply those procedures except in cases where the child would receive direct payment in his/her own right.

c. Considering the Competency of Other Beneficiaries If there is evidence of incompetency and the claimant is another beneficiary, such as a surviving spouse, parent, or VA insurance beneficiary

· consider competency a rating issue under 38 CFR 3.353 except when there has been a judicial determination of incompetency, and

· propose a rating on the issue or undertake any required development.

References: For more information on

· rating actions required after judicial determinations of incompetency, see M21-1MR, Part III, Subpart v, 9.B.5.g, and

· development required with different determinations of competency, see M21-1MR, Part III, Subpart v, 9.B.5.f and M21-1MR, Part III, Subpart v, 9.B.6.

3. Process for Making Competency Determinations

Change Date August 3, 2009

a. Process for Making Competency Determinations The table below describes the actions involved in making competency determinations.

Reference: For more information on due process in incompetency determinations, see M21-1MR, Part III, Subpart v, 9.B.6.

Stage

Who Is Responsible

Action

1

Rating Veterans Service Representative (RVSR)

Prepares a rating decision proposing a finding of incompetency after receiving clear and convincing evidence that the payee is incapable of managing his/her own affairs, including disbursement of funds without limitation.

Note: A rating is not necessary for any payee besides a veteran, if there is a finding of incompetency by a court. For all payees, however, a court adjudication waives the due process requirement.

2

Veterans Service Representative (VSR)

· Provides the payee notice of

- the proposed incompetency rating, and

- the opportunity for a hearing

· clears any pending end product (EP) that would normally be taken at this point

· establishes EP 600 to control the proposal of incompetency, and

· allows 65 days for a response.

Notes:

· EP 600 controls the incompetency proposal in any claim, including an original claim for benefits.

· If a request for a hearing is received within 30 days of the notice, no rating action can be completed until the hearing is held or the payee fails to report. At the hearing, allow the next of kin or any other person of the payee’s choice to participate and assist the payee.

Continued on next page

3. Process for Making Competency Determinations, Continued

a. Process for Making Competency Determinations (continued)

Stage

Who Is Responsible

Action

3

RVSR

Makes a final decision based on all of the evidence of record.

4

VSR

· Clears EP 600 upon completing action on the final rating decision and notification on the competency issue

· establishes EP 290 to control the appointment of a fiduciary, and

· prepares VA Form 21-592, Request for Appointment of a Fiduciary, Custodian, or Guardian, for use by the fiduciary activity.

4. Changing Competency Status

Introduction This topic contains information about changing competency status, including

· proposing a loss of competency

· determining restored competency

· limitations after competency is restored, and

· evidence required to restore competency.

Change Date August 3, 2009

a. Proposing a Loss of Competency Issue a rating proposing a change in competency status if the evidence of record will result in a change in competency status from competent to incompetent.

This proposal may be included in a rating addressing other issues, such as evaluation of a mental disorder.

Reference: For more information on procedures to follow upon receipt of evidence of incompetency, see M21-1MR, Part III, Subpart v, 9.B.

b. Determining Restored Competency In any case in which the beneficiary has been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a

· hospital summary

· report of release to or discharge from non-bed care, or

· report of other material change in condition.

c. Limitations After Competency Is Restored Restored competency does not of itself

· warrant a reduction in the evaluation of a veteran’s disability, or

· establish that a parent or surviving spouse is no longer entitled to Aid and Attendance (A&A).

Continued on next page

4. Changing Competency Status, Continued

d. Evidence Required to Restore Competency Any evidence showing the beneficiary may be capable of handling funds should be referred to the rating activity. The rating activity will consider this evidence, along with all other evidence of record, to determine whether competency should be restored.

Under 38 CFR 3.353(b)(3), a beneficiary is not required to undergo a psychiatric examination and/or field examination before his/her competency may be restored. However, a current psychiatric examination and/or field examination may be requested if needed to properly evaluate the beneficiary’s mental capacity to handle his/her own funds.

5. Evaluating Competency in Special Circumstances

Introduction This topic contains information about evaluating competency in special circumstances, including

· a competency rating after a decree by a court, and

· appropriate action after court adjudication.

Change Date August 3, 2009

a. Competency Rating After a Decree by a Court Use the table below to decide how to proceed with a competency rating of payees who have been found incompetent by a court.

Note: Judicial findings of a court with respect to the competency of a veteran are not binding on the rating activity.

If determining the competency of …

Then …

non-veteran beneficiaries such as a

· parent

· surviving spouse, or

· helpless child

a rating is not required except under certain conditions.

Reference: For more information on a child’s permanent incapacity for self-support, see M21-1MR, Part III, Subpart iii, Chapter 7.

Continued on next page

5. Evaluating Competency in Special Circumstances, Continued

a. Competency Rating After a Decree by a Court (continued)

If determining the competency of …

Then …

a veteran

· develop all necessary evidence for a rating activity determination, such as

- an examination

- hospital observation, or

- a field examination

· give great weight to a court decree of incompetency in conjunction with hospitalization for a mental condition, and

· do not make a rating of competency unless there is clear and convincing evidence of that fact.

Important: In the following cases a payee may be considered to have had notice and hearing under the laws of the state, so that additional notice and hearing are not required:

· a payee held by a court of jurisdiction to be incompetent, or

· a payee for whom a court having jurisdiction has appointed a guardian by reason of incompetency.

Note: If the veteran continues to be rated incompetent, prominently note the finding of competency by a court on the rating.

Continued on next page

5. Evaluating Competency in Special Circumstances, Continued

b. Appropriate Action After Court Decrees Use the table below to determine the appropriate action after court decrees concerning competency.

Reference: For more information on competency payment code award data, see M21-1, Part V, 13.05.

If a court decree …

Then …

declares a veteran, previously rated incompetent, competent

· take the necessary development action, and

· prepare a new rating, prominently entering a notation of the court’s declaration on the rating, if incompetency is confirmed and continued.

applies to a non-veteran beneficiary for whom a rating of incompetency is not required

request the VSCM to promptly certify the validity of the decree so that direct payments may be made to the beneficiary.

[MarkInTexas]

So basically a mental health rating of 70% or less would not bring up the incompetency or fiduciary issue, unless there were other financial red flags in the veteran's history?  It looks like it takes a "totally disabling disorder", which would seem to be 100% to flip that toggle switch.

 

Mark

[Gastone]

In reality, all it takes for a notification of a VA Fiduciary Exam appointment is something as simple as a Vet telling his Dr that his spouse pays all the Bills.  Keep in mind, all VA MH C & P's are forensic in nature, which means the examiner asks the same question in a number of different ways, looking for inconsistencies and over-reporting of symptoms.

[MarkInTexas]

Gastone,

That’s scary!  At what point do they notify a veteran of their intent to establish a fiduciary?  The veteran gets a letter, or just notices that his/her retro or regular payment didn’t arrive?

Surely they have to use more rationale than that a person’s wife or husband takes care of the bills.  That’s horrifying!

As I read, if the VA does that a person loses their ability to purchase or possess firearms.

Mark

[Gastone]

A notice of intent to appoint a Fiduciary will be mailed to the Vet which will include his Appeal options. He will also be contacted regarding setting up an appointment to meet with a Fiduciary Social Worker, in-home if necessary. Be prepared to lose some, if not all control of the Comp Direct Deposit Account.  Better to have a Trusted Friend or Loved One than a "for Fee Fiduciary" appointed.

A Vets failure to respond to the "Fiduciary Appointment" notification letter will eventually result in an automatic appointment of a "Professional For Fee Fiduciary", not good. The Fee for the Fiduciary is paid out of the Vet's Comp.

[MarkInTexas]

From what I’ve read thus far, looks like the VA notifies a veteran in the BBE that his/her retro is locked pending the determination of competency.  And many other veterans report a new “Predetermination” claim showing up on their eBenefits account page as well.

Wonder what the average time frame is from a mental health claim being shown as “Complete” with a BBE being mailed out, and this new “claim” popping up on eBenefits?

Many seem to have a real claim being completed or stuck in Preparation for Decision when this new Predetermination of Competency “claim” shows up.

Looks like only two guarantees of staying clear of that landmine are if the veteran receives their retro, and if nothing is mentioned in the BBE when it arrived.  Does look like the VA does reserve the right to initiate a Predetermination of Compentency within 30 days of granting an award though.

Most appear to be veterans who have filed for A/A, 100% increase on a mental health condition or IU.  (That’s only based on searches I made here on Hadit and across the Internet.)  

Wonder about veterans who have never been criminally incarcerated, nor treated, hospitalized, medicated or court-ordered in relation to a mental health condition, and who also maintain jobs, and who have a rated mental health condition of 70% or less?  Wonder if the VA throws the dart at them too, even if they do say that their spouse is in charge of paying the bills.  (I did see that example brought up all over the Internet too.  Scary.)

Mark

 

Edited February 25, 2018 by MarkInTexas