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]

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.

Thanks broncovet for your input. You make some very valid points. I was actually pondering those points with my

wife and decided to come back online to see if there were any more responses and here you are stating those exact

questions that we were discussing.

I was waiting to ask Jim Strickland if I should go ahead and get a lawyer now or later. He told me that he had

a lawyer if I needed one. I'm not sure if it is "pro bono" or not. I would appreciate it if you would elaborate

on the EAJA a little more and I could speak with Mr. Strickland on the subject.

Does this lawyer that contacted you practice in a certain region?

I will be taking my NOD to the VARO tomorrow as suggested by Mr. Strickland. Whom do I give it to? Should I find

the American Legion VSO(POA) and have him/her deliver it or what? I have read here somewhere that I should get a

time stamp or something validating receipt of documents.

[broncovet]

IMHO, a fiduciary case is way, way, beyond any VSO or "free advisor". I dont think you can possibly underestimate the devestating financial effect of a bad fiduciary would have on your family, and this is not something I would leave to either "chance" or even a lawyer with less than significant experience with VA law. I would go with a pro, and I doubt that you would regret it. At a very minimum, you can almost always discuss your issue with a VA attorney, and, even if you decide not to enlist his or her services, they will often point you in the right direction.

Frankly, I would highly consider Katrina Eagle, Bergman and Moore, Carpenter (Topeka Kansas), or Doug Rosinski first. These are all highly regarded VA law experienced attorneys that have won significant benefits for their (Veteran) clients.

You can even do your homework and do a search, at the CAVC website, and type in an attorneys name and find out how he has done with other Vets.

You may also have good luck with some of the "national" law firms who do pro bono work for Vets. You see, a large well known law firm is NOT going to want one of their attorney's on staff to do pro bono work, and then say...ok we represented you and you lost..now have a nice day...NO! Those law firms have BIG EGO's and would not want their good name attached and associated with failure! Those big name law firms have excellent research teams and software to "dig out" those loopholes and exploit them to the max.

While I am not an expert at all, I have read enough about this issue to know this is not childs play! The VA has been burned and burned badly, and those VA employee lawyers want revenge and would love to take a case to "weaken" or even reverse Freeman, so you need a "heavy hammer" to counter the VA huge resources...some 400 or so lawyers.

Do not even think of showing up at a gunfight with the VA with a knife or any thing less than HEAVY artillery...such as a very experienced, big name law firm in the category of those I mentioned. You need every advantage you can muster, so the sooner a lawyer enters your case, the more likely you are to have a positive outcome. It is high time to call in the "heavy hitters" to help you. The VA has made their position known: They plan on taking advantage of every Vet and family they can to the max on the issue of fiduciary.....that fishy smell coming from the fiduciary department at the VA is NOT dinner!!

[Sidney56]

I understand the seriousness of the matter broncovet. Believe me I do! A bad decision

would actually ruin my family.

I still need to get this NOD in ASAP though, correct. I see the ad for Bergman and Moore.

Is this how I contact them. I'm not sure if I have the time to seek council before they

make a decision.

It seems that this is a never ending battle. I thought after all the years I had won, but

now I see it was just a battle in a huge war.

[GuaymasJim]

Sydney, I strongly recommend that you follow Mr. Strickland's advice to the letter. I am almost certain that the attorney he has in mind is Katrina Eagle. She argued/won the FREEMAN case. Discuss having an attorney with Mr. Strickland right away.

Your immediate concern is to get the appeal of the incompetency determination formally submitted to, and receipt acknowledged by, the VA. You need only say that (1)You disagree with the incompetency determination; (2) You want a hearing before any action is taken including the appointment of a fiduciary; (3) You want payments of your disability compensation to continue unaltered and uninterrupted. You really don't need, or want, to say anything else.

Make copies of your disagreement and attachments and take them to your VARO. Ask them to date/time stamped a copy for your records. I have heard of some veterans getting some static about getting a date/time stamped copy, but if you politely hold your ground and you should be fine. You really want to get this done right away! As many of us have learned, it is much less time consuming and successful to influence a decision before it is made than it is to appeal an already made adverse decision. Try to stay a couple of steps ahead of them.

Good Luck!

[broncovet]

If you are at or near the deadline for filing a NOD BY all means do so! You can make it a generic NOD and dont have to give your reasons, something like this:

I disagree with the decision dated June 1, 2011 on ALL issues, and plan to contest the result with a hearing (DRO, BVA, etc). I further disagree with any possible deemed denials.

Then sign your name. Your attorney (or other representative) can explain your disagreement in detail, but the timeliness is critical.

[Omg-Sue]

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

http://www.vawatchdo.../nf080910-1.htm

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

http://www.legalhelp...ary-challenges/