Incompetency Issues

[Berta]

from : http://www.vawatchdogtoday.org/

Re: Freeman V Shinseki

"The Freeman case stands to change the way the VA views fiduciary-related matters.

Currently, a veteran who has been found incompetent and appointed a VA fiduciary has no say in the appointment process nor any recourse whatsoever if he or she wants a different fiduciary, is having problems with the VA fiduciary, etc.  This is because the VA currently interprets the law regarding fiduciary-related matters (38 USC section 5502) as being at the Secretary's discretion. 

The Freeman case is important because it stands to show how fiduciary-related issues "affect the provision of benefits" to a veteran and therefore must be able to be reviewed by the Board of Veterans' Appeals and the U.S. Court of Appeals for Veterans Claims.  Given that the VA's Fiduciary Program only has some 102,000 beneficiaries (according to VA OIG report from Mar 2010), the outcome of this case will not affect many veterans. 

But, for this group of veterans, if the outcome is favorable for Mr. Freeman, then this case will improve all incompetent veterans' rights to say who can control their VA benefits."

Katrina Eagle, Esq.

President, National Organization of Veterans Advocates, Inc.

There is considerable info at the VAWatchdogToday site on this issue.I was astonished to learn that VA is even quibbling with fiduciary expenses even when the fiduciary is the veteran's spouse.

Often the VA is completely correct in determining the veteran needs a fiduciary but allows the veteran no control whatsoever over his/her money.

We read some time ago how some lawyers were stealing veteran's comp as their trusted fiduciarys. If the Freeman Case succeeds,this important issue will have some resolve and give more vets their rights back to control their VA comp.

One commenter at VAWatchdogtoday made a good point- although the commenter was not affected by these fiduciary laws- one never knows when any VA claimant could be deemed incompetent by the VA. It could be a careless disregard by a C & P examiner for evidence of competence and suddenly either the vet's anticipated retro is threatened or their monthly comp check is.

I suggested in the IMO forum that any vet getting an IMO for a mental disability cl;aim, also have the IMO doc state they consider you as fully competent to handle your own funds.

[Testvet]

all I remember about that question during my C&P was how did I manage my funds I told the female C&P doc that I had it direct deposited and my wife paid all of the bills and I didn't have any money management issues there was always thousands in the checking account at the end of the month and I had no problem with the way she handled it, the C&P examiner busted out laughing and said I had it under control then so the C&P report stated I had no money management issues and was competent to handle my own affairs. :)

But I agree with Jim Strickland any of us could get bit by this if the VA decides to turn our checks over to a "fiduciary" regardless of our objections and it sounds our appeals falls on deaf ears at the VARO level we all should pay attention to how this case turns out one day our names could be in a case like this

Edited December 29, 2010 by Testvet

[broncovet]

Yes, I agree with the commentor, Berta, that we DO "have a dog in this fight". If the VA gets away with denial of due process for Vets with mental illnesses, what is to stop them from denying due process for widows, Vets without mental illness, dependents...everyone. This is what this case is about...the VA forced this Veteran to have a fiduciary, against his will, and then he has no real way to appeal this, under current laws.

I do think that people need to be protected from people who are mentally ill and may become violent toward others. But to declare them incompetent so that a friend of a VA executive can "manage" the Vets money for him (and charge the Veteran excessive fees for doing so) is inhumane treatment to the mentally ill.

In the "real world" (non VA), if you want to challenge someones mental competency, (for reasons involving money) that decision is made by a judge..and the alleged mentally incompetent would be provided a lawyer to represent him. ( Certainly, the mentally incompetent would get to tell the judge his side...why he thinks that his wife would be better suited to manage his finances rather than a stranger who is in it to collect fees.)

This case is important to us, and is a VA "erosion" of due process rights. WE need to fight for those rights for all Veterans, or we can be the one who's due process rights are violated by the VA. If the VA gets away with violating the due process rights for the mentally ill, who is next?