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?

[Sidney56]

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

Yea QUAD, I have Berta to thank for pointing me in the right direction. Jim is a great guy and stays

in contact with me since I solicited his help. He said to send his best wishes to Berta and all the

Hadit members and he is sorry that he can't post here due to time constraints with VAwatchdog.org.

I know Omg-Sue and K are going through the same nightmare also. I have not heard an update from her

lately, so I might give her a call.

I am actually filling out the 4138 now to get in the mail first thing in the morning. I will keep it

generic just to get the ball rolling. This hopefully will stave off any outside appointment until my

wife and I can sit down face to face with someone in a hearing to give our evidence. Here is an example of the 4138, will this suffice:

Refer To: XXX/XXX/XXX

******** CSS XXX XX XXX

******** My Name

I am appealing your determination of incompetence per your letter dated XXX XX, 2011.

I would like a hearing scheduled at the earliest possible date to present my evidence in this appeal.

I want my compensation benefits to continue while I appeal the rating decision dated XXXX XX, 2011.

I would like to give notice that I received an inadequate examination during the C&P exam dated XXXXX XX, 2010.

What good it will do is any ones' guess. My main concern is to keep them from locking my monthly

compensation while we try to get this thing sorted out. As I have stated before, I have no problems

with my wife being my fiduciary, but our credit is not good and I'm sure they will use this to try

and disqualify her. Which doesn't make any sense to me, because we have been in financial difficulties

since I had to stop work. They don't look at things logically though. Everything is black and white to

the VA. There is no gray area. If the majority of them had any gray matter, vets would not be in the

situations that we face at this present time.

It really burns my chaps to know that some VSO's are not going to bat for the

vets that they are suppose to be helping. My VSO seems to think that this is a

bad idea as it might cause a reduction in my rating. He wants to take the wait

and see position and I believe that trying to reverse an appointment of a outside

fiduciary(other than my wife) would be almost impossible, as opposed to fighting this before it happens.

As I keep saying, "If I Can't Have What Is Rightfully Mine, Then No One Will"!

Edited June 20, 2011 by Sidney56

[QUAD50]

Yea QUAD, I have Berta to thank for pointing me in the right direction. Jim is a great guy and stays

in contact with me since I solicited his help. He said to send his best wishes to Berta and all the

Hadit members and he is sorry that he can't post here due to time constraints with VAwatchdog.org.

I know Omg-Sue and K are going through the same nightmare also. I have not heard an update from her

lately, so I might give her a call.

I am actually filling out the 4138 now to get in the mail first thing in the morning. I will keep it

generic just to get the ball rolling. This hopefully will stave off any outside appointment until my

wife and I can sit down face to face with someone in a hearing to give our evidence. Here is an example of the 4138, will this suffice:

Refer To: XXX/XXX/XXX

******** CSS XXX XX XXX

******** My Name

I am appealing your determination of incompetence per your letter dated XXX XX, 2011.

I would like a hearing scheduled at the earliest possible date to present my evidence in this appeal.

I want my compensation benefits to continue while I appeal the rating decision dated XXXX XX, 2011.

I would like to give notice that I received an inadequate examination during the C&P exam dated XXXXX XX, 2010.

What good it will do is any ones' guess. My main concern is to keep them from locking my monthly

compensation while we try to get this thing sorted out. As I have stated before, I have no problems

with my wife being my fiduciary, but our credit is not good and I'm sure they will use this to try

and disqualify her. Which doesn't make any sense to me, because we have been in financial difficulties

since I had to stop work. They don't look at things logically though. Everything is black and white to

the VA. There is no gray area. If the majority of them had any gray matter, vets would not be in the

situations that we face at this present time.

It really burns my chaps to know that some VSO's are not going to bat for the

vets that they are suppose to be helping. My VSO seems to think that this is a

bad idea as it might cause a reduction in my rating. He wants to take the wait

and see position and I believe that trying to reverse an appointment of a outside

fiduciary(other than my wife) would be almost impossible, as opposed to fighting this before it happens.

As I keep saying, "If I Can't Have What Is Rightfully Mine, Then No One Will"!

[QUAD50]

Sounds like you are heading in the right direction but I would run this by Jim to see if you are missing anything in your letter. Seems like appealing a C&P exam is difficult but if that is the only way to go then you must approach it that way and have all your ducks in a row. This is critical for you and your family so I would make sure to get advice from the experts. Again, I am watching this closely in case it ever happens to me. (At 100% PT TDIU for PTSD, I am a big target for those wonderful folks at the DVA)

[GuaymasJim]

Sydney,

I would also include copies of the three attached files.

I would also add a line after your claim number and name:

APPEAL OF INCOMPETENCY DETERMINATION AND REQUEST FOR HEARING

Did Mr. Strictland advise you to include the complaint of an inadequate C&P? He appears to be saying don't try to justify your appeal at this time. His advice is solid gold!

It is my understanding that you are attempting to avoid having the VA appoint a fiduciary, but would accept having your wife appointed if one is necessary. I would explore the use of a Durable Power of Attorney if you can get the VA process slowed down enough to allow for it. As the statute states, even with a determination of incompetency there is no absolute requirement that a VA fiduciary by appointed. The FREEMAN decision reinforces the logical notion that the person caring for you--your wife--would be the best one to handle your affairs.

You really need to get your appeal in VA hands BEFORE they assign a fiduciary!

Good luck!

Freeman_CAVC_Dec_4-26-11.pdf

s3_103.pdf

§ 3.353 .pdf

[Sidney56]

Sydney,

I would also include copies of the three attached files.

I would also add a line after your claim number and name:

APPEAL OF INCOMPETENCY DETERMINATION AND REQUEST FOR HEARING

Did Mr. Strictland advise you to include the complaint of an inadequate C&P? He appears to be saying don't try to justify your appeal at this time. His advice is solid gold!

It is my understanding that you are attempting to avoid having the VA appoint a fiduciary, but would accept having your wife appointed if one is necessary. I would explore the use of a Durable Power of Attorney if you can get the VA process slowed down enough to allow for it. As the statute states, even with a determination of incompetency there is no absolute requirement that a VA fiduciary by appointed. The FREEMAN decision reinforces the logical notion that the person caring for you--your wife--would be the best one to handle your affairs.

You really need to get your appeal in VA hands BEFORE they assign a fiduciary!

Good luck!

Yes GuaymasJim, I am in constant contact with Mr. Strickland. In fact, I just finished speaking with him

and he assured me that he would stand with me until this is rectified. He even contacts me to see if I'm

moving forward as he suggested. He also told me that he has legal council in place if it should come to that.

The reason I stated that the C&P was inadequate, is because I and my wife specifically told the C&P examiner

that the only reason that I didn't pay any bills was because I was not working and she was the only one receiving

a pay check and I put my little $200 towards groceries. How they got unable to handle financial affairs from that, I don't know.

No, I don't have a problem with my wife being my fiduciary, if there was any guarantee that they would appoint

her. After being married for 18 years, I don't see any risk in that situation. But I don't make those decisions.

Yes I feel highly Blessed to hear Jim Strickland say "Don't worry, I got your back"!

He really thinks highly of our Berta, and we all know that she knows her stuff When she sinks her

teeth into something, she's worst than a pit bull.

Thanks for your input. I will include that line in the 4138 with copies of the documents. You guys are AWESOME!!!

Well, I guess tomorrow is road trip time. I will be hand delivering this to the VARO. I think that will be 4 hours well spent.

Edited June 20, 2011 by Sidney56

[broncovet]

There are two questions here that you need to answer:

1) Should you "lawyer up"? While almost no one wants to pay lawyer fees, you need to understand there is a real possibility that you can hire a lawyer and not have to pay. There are at least two circumstances when you get a lawyer and it costs you zero...one is the lawyer represents you pro bono, and the second is that you win your case and the judge awards your lawyer fees to be paid by the VA. (This can happen through EAJA..Equal Access to Justice ACT).

2) If you should lawyer up, when is the best time to do so. I think if you do decide that the risks of "not hiring a lawyer" are greater than the fees you would have to pay, then the best time is "the earlier the better". Your lawyer may have to try to "undo" mistakes you make, and he may not always be able to do that.

I think, having read some things about the VA and fiduciary fraud, that it would be a good time, at a minimum, to see if you can find a "pro bono" lawyer.

I got a letter from a lawyer wanting to take my case and said the fees will be paid by EAJA.