The VA Fiduciary Program

In the course of qualifying for the VA Aid and Attendance Improved Pension, many of my elderly clients are determined by the Administration to require the assistance of a VA Fiduciary.  The veteran can suggest an individual (such as a child who already has the veteran’s Power of Attorney) to fill this role.  While the presumption is in favor of a person that  the veteran suggests, the VA will appoint a professional fiduciary if they do not believe the person suggested by the Veteran is suitable.

The VA will only determine that an individual is unable to manage his or her own financial affairs if medical documentation, or a court (for example if a Guardian is appointed) has already made that determination.  Often, the inability to pay bills or manage money is one of the indications that an elderly veteran does require the regular aid and attendance of another, so we do not refute the VA’s determination that a fiduciary is necessary.  But a younger veteran who, for example, is now managing her behavioral health issues with medication may want to appeal this decision.   A veteran has the right to appeal the determination that she is unable to manage her own affairs, or the identity of the fiduciary that the VA has selected.

One reason that a Veteran may want to appeal this decision is that the VA is required by the Brady Handgun Violence Prevention Act  to report the names of “incompetent” veterans (in other words, those who require fiduciaries) to the FBI, which then adds the names to the National Instant Criminal Background Check System that gun dealers must check before selling a firearm. In addition, although the appointment of a VA Fiduciary does not affect the veteran’s non-VA benefits or the amount of  his VA benefits, it does mean that any retroactive  benefits will be withheld by the Administration until the fiduciary is in place to receive them.

Veterans who want to appeal a determination that a fiduciary should be appointed for them should contact a Veterans’ Service Organization such as the VFW, AMVETS or the Disabled American Veterans, or an attorney who is accredited to practice before the Veterans’ Administration.

 

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