Question Competency

[chicotla]

gone

[Berta]

You certainly seem to be highly competent to handle your own funds.

I have no idea how VA would handle this situation and the last thing you want is some fiduciary who the VA picks.

You have evidence already of your competency .

Good for you.

I will try to find a similar case the VA has already decided.If there even is a case.

This is something any of our vets ,who VA declares incompetent, and who has a spouse who is dying, should be Very concerned about.

My husband had a 1151 stroke ( VA caused it) and VA says he was 100% Total but not 100% Permanent - regarding the stroke. It was a contributing factor to my FTCA case, and on the death Cert and Autopsy.

All of my evidence ( mostly from the VA itself, )states he was 100% P & T due to the stroke.

Has VA declared you 100% with a P & T designation yet?

Do I understand that the 100% is solely for the stroke? And SSDI did Not declare you incompetent due to the stroke?

This is an important issue for everyone here-who is or would be possibly declared incompetent by VA, and whose fiduciary spouse  could no longer handle fiduciary matters.

 

 

[broncovet]

Its not gonna be easy.  You are likely gonna need an IMO/IME.  This would be another doc who stated you were competent refuting the old exam where they opinied you were incompetent.  

Get your cfile and find the exam where the doc said you were incompetent.  You say there isnt one?  Well that's good news, you should be able to overturn this..it may even be CUE.  Its my opinion the VA cant declare you incompetent without valid medical evidence.  

File a SCL and request to remove incompetency.  Provide medical evidence of your competency.  

As an alternative:  Find a 3 person willing to do it for you such as a trusted friend, brother, sister, etc.  

There is not much doubt you will need medical evidence of competency.  

[Berta]

You mentioned CUE Broncovet- that might be possible as well. I didn't even think of that-Thank you!!!!

Chicotla-  Can you scan and attachhere  the decision your received 18 years ago that deemed you incompetent? We need to see the evidence list as well.

Cover your C file #, name, address prior to scanning it.

 

[Berta]

I finally found what I needed:

"Restoration of Competency A mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. 38 C.F.R. § 3.353(a). Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance, and, disbursement of benefits. Such determinations are final and binding on field stations for these purposes. 38 C.F.R. § 3.353(b)(1). Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary to select a method of disbursing payment, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments; and authorize disbursement of the benefit. 38 C.F.R. § 3.353(b)(2). If in the course of fulfilling responsibilities the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in 38 C.F.R. § 3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs. 38 C.F.R. § 3.353(b)(3). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations relative to incompetency should be based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency. 38 C.F.R. § 3.353(c). Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353(d).

https://www.va.gov/vetapp18/files5/1826303.txt

The vet in this case could not get her competency restored.

I think many vets who finally succeed on a MH issue with a 100% rating are only too happy to have the spouse as fiduciary ,if VA declares them incompetent, because they want their fight with the VA to be Over!

When SSDI awarded my husband solely for his 1151 stroke , they never mentioned incompetency-but when I filed for him a reconsideration ( that brought a new SSDI award- solely for his PTSD, )SSA called him to advice him they had declared him incompetent( VA never had as his SC for PTSD was only 30% in his life time) and SSA advised him he could appeal that. He said,' no, that;s OK - I like it- because when those student loan people ,who keep harassing me ,call again I can tell them I am incompetent and maybe then they will stop calling.; besides my wife always handles the money anyhow.'

(He only owed a student loan of a few hundred bucks.The VA signed a student loan waiver for him and checked off 100% P & T regarding the stroke. He died before he got the 100% P & T rating for his PTSD. You cant declare a dead vet as incompetent)

My long point here is this is a serious matter for many-not only are Vietnam vets getting older, they often make the mistake of telling the VA in a C & P exam, for a MH issue, that the spouse handles all the money- it is a traditional American fact, in many if not most marriages.

That statement can come back to bite them if the VA ever wants to raise them to 100% MH, and gives VA impetus to declare them incompetent.

Over the years we have helped vets here to succeed in fighting incompetence issues- but they were still in the appellate period, but this situation here now happened 18 years ago.

 

 

 

 

 

What does the topic title mean? who is Dr. Paxton Foster and what relationship do they have to your post?

 

[Berta]

Forgot to ask-do you have a copy of the C & P exam that rendered you incompetent?

Do you have a copy of your VA medical records, and also your C file?

 

[Berta]

here is one of our members who had his competency restored:

https://community.hadit.com/topic/64054-found-competent-by-the-va-but/