Fiduciary Adjustment

[Sidney56]

I just checked ebenefits to see if they were doing anything with my dependency

claim, and as usual everything is still in the development stage. Now this is

even though I submitted the paper work going on 2 months ago, after they kept

asking for documentation on my marriage and son's dependency about 5 times. Last

time I sent the information by my VSO, fax and certified mail.

I also saw that "Fiduciary Adjustment" had been added to claims in the development

stage. Sent in a 4138 disputing the proposal of incompetence and asking for my wife

to be appointed if one was deemed necessary. Sent this in about 2 months ago also.

Still have not heard anything concerning it.

What is this Fiduciary Adjustment crap? Seems like they are up to their old tricks

of assigning a fiduciary without any notification or interview.

Also, if my wife is appointed as my fiduciary, what restrictions are imposed on how

we spend my OWN money?

[Berta]

"I didn't notice that my Psy had put unable to handle financial affairs on the A&A form."

Really! meaning some half baked rater made this decision?

Do you have a vet rep who can help you- preferably one who has an office in or near the VARO?

Evidence- dont forget there is a wealth of evidence you can use to combat this=such as prints outs from VAWatchdogToday as to that felon the VA appointed, etc etc.

Have you contacted Jim Strickland yet -his email addy is at the site-

and have you read the suggestions he has made to veterans who get these proposed incompetency letters?

[Berta]

Lots here but it might have changed since Jim posted this topic some time ago:

http://www.vawatchdog.org/10/nf10/nfaug10/nf080910-1.htm

and this lawyer has a link to the NY Times story:

http://www.legalhelpforveterans.com/2011/04/va-fiduciary-challenges/

[Sidney56]

"I didn't notice that my Psy had put unable to handle financial affairs on the A&A form."

Really! meaning some half baked rater made this decision?

Do you have a vet rep who can help you- preferably one who has an office in or near the VARO?

Evidence- dont forget there is a wealth of evidence you can use to combat this=such as prints outs from VAWatchdogToday as to that felon the VA appointed, etc etc.

Have you contacted Jim Strickland yet -his email addy is at the site-

and have you read the suggestions he has made to veterans who get these proposed incompetency letters?

Thanks Berta for your response. I know you are keeping a close watch on this fiasco.

The rater actually did use the information provided from the C&P exam and the A&A form

filled out by my VA Psy. That is the evidence they said they used to make the determination

of incompetency.

I had asked her numerous times to make an assessment of my

competency in her notes and she refused stating that I need help with all my affairs

from my wife. She did notate on the A&A form that I was unable to handle my own affairs.

I pleaded with her several times not to do this because it would awaken this sleeping

monster of Fiduciary. She and my PCP stated that they would not go against the

C&P examiner's findings. They do as they please, when they please.

I have a AM VSO, but he is of no help. He stated that everything should be okay. Yea Right!

Just what should I do to combat this before a decision is made? Should I wait to see if they appoint

my wife? I know they are suppose to do a interview to determine if my wife qualifies to be

my fiduciary. A criminal background and credit check is suppose to be performed. Neither of our credit

is good due to her being the only one working for the last 6 years. They will probably try to use this

to disqualify her. I feel an appeal coming on. At least I will keep my check coming during the appeal.

What should I do with the print outs from vawatchdog? Just copy and send them in attached to a 4138?

I will try to contact Jim today.

Edited June 18, 2011 by Sidney56

[Sidney56]

Lots here but it might have changed since Jim posted this topic some time ago:

http://www.vawatchdog.org/10/nf10/nfaug10/nf080910-1.htm

and this lawyer has a link to the NY Times story:

http://www.legalhelpforveterans.com/2011/04/va-fiduciary-challenges/

I have read the articles Berta, but the only thing that seems to apply to me

would be the following. Correct me if I'm wrong:

If a fiduciary is proposed or newly assigned:

1. Immediately file a Notice of Disagreement with fiduciary assignment.

This should be written as a standard sort of NOD and requesting a personal hearing and so on.

Overall

Consider how the determination of incompetence was made. Consider due process violations.

Title 38 - Chapter I Part 3 - 3.353

Determinations of incompetency and competency.

http://cfr.vlex.com/vid/3-353-determinations-incom

petency-competency-19775480

(3)(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.

I don't think there is a question of due process violations, because they

have 2 medical statements determining me incompetent.

Should I go ahead and file a NOD and request a hearing now, or wait to see if they appoint my wife?

Edited June 18, 2011 by Sidney56

[Sidney56]

"I didn't notice that my Psy had put unable to handle financial affairs on the A&A form."

Really! meaning some half baked rater made this decision?

Do you have a vet rep who can help you- preferably one who has an office in or near the VARO?

Evidence- dont forget there is a wealth of evidence you can use to combat this=such as prints outs from VAWatchdogToday as to that felon the VA appointed, etc etc.

Have you contacted Jim Strickland yet -his email addy is at the site-

and have you read the suggestions he has made to veterans who get these proposed incompetency letters?

Hi Berta....I contacted Jim Strickland as you instructed and he replied quickly. This guy is on the

ball. I sent you a message with his reply.

edit: Sorry Berta, but I'm unable to send you a PM. I don't know why.

Here's an excerpt: You should appeal asap. You seem to have a good understanding of

what's going on.

Keep your appeal generic. Just tell them "I am appealing your

determination of incompetence."

No need to say why yet. Tell them that you want a hearing. Say "I want

my benefit to continue while I appeal."

My thoughts on his suggestion to appeal ASAP. If I sent a NOD now, it will stave off

them appointing someone else without my knowledge while possibly keeping my monthly

compensation until a hearing. If I don't NOD now, they could possibly lock all my funds

while appointing the fiduciary and it would remain in this state as I go through an

appeal.

Do you think I'm looking at this correctly?

Edited June 20, 2011 by Sidney56

[QUAD50]

I think you made a wise choice by contacting Jim. Now you must file a NOD to start the appeal process. You can have the DRO adjudicate the appeal and if you are not satisfied with his/her decision then you can go to the VBA court. Sounds like you are appealing the competency decision so I believe you would require additional evidence supporting your appeal. I am no expert but these forums have a lot of great information

An NOD must be (1) in writing, (2) identify the rating decision by date, (3) express a disagreement with the specific issue(s) denied in the rating decision and (4) indicate a desire to appeal the decision. Nothing else is required and saying anything more can actually increase the chances of creating a problem. The NOD should be dated and signed by the claimant and mailed to VA by certified mail, return receipt requested, with a copy kept as the first document in a new "appeals" file (per Stateside Legal)

I am interested in this Fiduciary situation because I am 100% P&T, TDIU. If they come after me I will set-up shop in the deep woods of the upper peninsular of Michigan

Best of luck