To get notice that the VA is proposing to appoint a fiduciary is usually an unpleasant, unwelcome surprise.
The veteran may or may not need help and guidance with the award money he or she has earned.
The VA fiduciary appointment program is one of the more mismanaged and poorly understood problems of your VA.
The program is changing however...slowly but surely. If you disagree with the appointment of a fiduciary in your case, you must act in your own interests and you must act right now.
Read this page carefully. Then proceed to act to help yourself.
Veterans want to know about fiduciary appointments...
Search Term; "how to get spouse chosen as va appointed fiduciary"
The spouse should be the first person considered. To be appointed the individual must show a good credit history and agree to the terms and conditions of a VA imposed fiduciary appointment.
Search Term; "can a va field examiner be sued"
Maybe. You will need to consult an attorney who is experienced in VA law. It's likely to be very expensive for you though.
Search Term; "lawyers for veterans fiduciary"
Many veterans want to hire a lawyer as soon as they begin the fiduciary process with VA. Unfortunately, most vets don't understand that there are limits to what lawyers are able to accomplish. Vets also think that because they are outraged at the injustice of VA that lawyers will also be outraged and work for free. While many of my attorney friends do take on a lot of "pro bono" or no charge work, most fiduciary cases won't be represented for free. There are steps described on this page that vets must do for themselves, prior to trying to retain legal counsel.
Search Term; "what does appointed as fiduciary mean and why is this useful"
An individual who is appointed as fiduciary is responsible for managing the VA benefits money for a veteran who is declared incompetent to handle his/her own money. Many veterans who suffer from mental health issues, dementia or other cognitive problems may need someone to protect their money for them.
Search Term; "how much does VA fiduciary get paid?"
The usual fee is somewhere around 4% or 5% of the amount of money paid each month. This will vary from region to region.
Read more of my Search Engine Answers by clicking here
Overall, many of the processes at your VA are badly broken
. The fiduciary appointment system is mismanaged and often abusive to the targeted veteran.
I've been following VA fiduciary cases since my early days of writing for VAWatchdog at http://www.VAWatchdog.org
While many veterans do need help to manage their financial affairs, there are a lot of you who get caught up in the process through a series of errors. Once you are in this quagmire, it is often very difficult to get out.
In 2011 there was a major decision by the CAVC
that is beginning to help change things. That's usually called The Freeman Decision
and you should read it now. This is a complex legal document but it will help to to develop your appeal.
In VA terms, a fiduciary
is a legal guardian who will manage the money that VA has awarded to you for your service connected condition(s).
VA may attempt assign a fiduciary to manage your financial affairs if you are determined to be incompetent to do that for yourself. In theory the VA fiduciary will only have authority to manage VA funds but if you have other income mixed with the money from VA, they will often seize it all.
Many veterans aren't aware that they're being examined for incompetence. During a routine C & P exam the examiner may ask you "How do the bills get paid around your house?" or a similar question.
There are a lot of us who would innocently reply; "My spouse writes all the checks. We find it easier to let her do all the banking stuff and she's better at it than I am. It works for us."
To most C & P examiners that means you can not handle your own finances. They will make a brief note, "Veteran is not competent to manage his finances."
Once that little remark is in your record, you have a world of problems coming your way.
You will then be notified that there is a "proposal" to appoint a fiduciary for you. The first contact may be by mail or by telephone.
VA will ask to set up a meeting with you in your residence. This meeting will be with a VA Field Agent (or examiner) who will ask you about your finances, do background checks on people in your home, perform credit rating checks and so on. He/she will tell you that as an incompetent veteran you can not have guns in your house and you will not have the right to purchase firearms.
Ostensibly, the VA field agent will try to determine who in your family may be appointed as your fiduciary. Many times the agent will find that nobody in your family has a good enough credit record so he/ she will appoint a paid fiduciary.
In either case, you will lose control of the money you have earned from VA. The paid fiduciary will take their cut of the money each month and if you want any of it, you must go through a complex process of asking for it.
Often, your request for money is ignored or denied.
If you have a fiduciary today and you're unhappy about it or if you have just been notified that VA is thinking of appointing a fiduciary, you may appeal.
Nobody will do that for you. There is a process that must be followed and you must do it yourself. There is nobody to call, no VSO or Senator can help you. Lawyers rarely are able to take these cases...there are too many cases and the lawyers usually can't bill for their time.
If you will follow the process as it is described below and if you will put a lot of your personal time into reading and learning for yourself, you have a very good chance to win and not have to deal with this.
There is no other way than what you'll read here that I'm aware of.
What to do when the fiduciary letter arrives
Most veterans do not understand the VA fiduciary appointment process. When a letter arrives telling the veteran he or she is incompetent to handle their VA award money, it's usually a shock.
Very few Veterans Service Officers or advocates within a Congressional Representatives office are usually of little help. Most lawyers don't have any experience with this VA action.
The veteran is usually left to fight the battle alone.
VA will often try to appoint a fiduciary when the veteran is rated at 100% for a mental health problem and there will be an award of retroactive pay that is greater than $20,000.00. There is often no particular reason for the proposal to appoint a fiduciary.
VA should always try to appoint a close family member although that doesn't usually happen. In any case, whoever is appointed will be required to complete paperwork and clear any expenditures by the veteran through the VA.
If the appointment of a fiduciary can be avoided, it should be.
The process usually works like this:
(1) The veteran has a C & P exam where the topic of finances is brought up. The examiner may write a brief note that "Veteran is incompetent to manage his finances." This may or may not be true. I've observed cases where the veteran said "My wife handles our checkbook" and that has been interpreted by VA as enough to declare the veteran incompetent.
(2) A letter will arrive that is a "proposal" to begin an investigation and to appoint a fiduciary.
(3) If the veteran does not properly and timely respond to this proposal, an appointment is made for a VA Field Examiner (or Agent) to come to the veterans home to discuss the proposal to appoint a fiduciary.
(4) If the Field Examiner does come to the home they will soon after begin to run credit reports and other background checks to determine whether the spouse, parent or perhaps a sibling may act as fiduciary.
(5) If no approval is made for a family member, the FE will see that a VA appointed "professional" fiduciary is appointed. That person may be a banker, lawyer or other VA approved person and they will then take over the veterans VA money. The veteran will then have to seek any funds through the appointed fiduciary.
Far too many veterans get this sort of notice and then they don't respond appropriately. If the appropriate response doesn't happen in a timely manner, the VA will act on the proposal and appoint a fiduciary.
The fiduciary is then free to act to control the finances and the result is often a major problem for the veteran.
The following will apply to actions the veteran must take when he/she is first notified that a fiduciary appointment is being considered. These steps must be done as soon as possible after the letter arrives. Time spent calling a Congressperson, consulting a VSO and so on is usually time wasted.
Note that all these steps must be conducted in writing. There should be no phone calls
and no emails
. Faxes are not a good idea. This is a very serious matter and the veteran must initiate a strong defensive plan of action. Letters must be as brief as possible and state all the facts. Mailing must be done via USPS Certified Mail with Return Receipt Requested.
Please see http://www.vawatchdogtoday.org/Letter_Templates.html
Using the letter templates as above, write your VA Regional Office a very brief letter. This should not be more than one page.
When you write to VA you must not display anger or emotion. Do not write and tell your story. Do not express any anger.
In your letter you must say:
"This letter is a Notice of Disagreement with your proposal to consider the appointment of a fiduciary."
"I disagree with your inference/conclusion that I am incompetent to manage my finances."
"Any examination that has suggested that I am incompetent was not complete or thorough. The examination was inadequate. I request another examination."
"I request a personal hearing."
"I am not incompetent."
"I request that all my benefits be continued while I appeal your proposal and that no benefit payments be interrupted or delayed until I have exhausted all appeals venues."
(3) Send this letter via certified mail
(4) Wait for a reply.
While you wait...separate your checking accounts. If your spouse uses the same account as you, she (he) should open a separate account. The checking account that your VA check is deposited to should have no other funds in it. If VA seizes that account, you want as little in it as possible.
Check your credit reports. If there are blemishes you must take care of that now.
Sit down and sort out your finances. Do a financial report on yourself so that if and when VA pushes for this you will be prepared to answer questions about your finances.
Do not delay. There are no specialists out there to help you. You are the only one who can begin to solve your own issues with VA.
If a fiduciary already has been assigned:
1. Write a formal appeal letter (everything sent certified return receipt
and copies maintained) to the VA Regional Office that is handling the claim.
See How To Appeal
If a fiduciary is 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.
Advanced Reading is here.