The VA defines a mentally incompetent person as 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. Such a determination can be made by the raters in your VA Regional Office but requires corroboration by a medical authority.
To make this determination, the raters would typically rely on medical evidence in a veteran’s medical files. The process is often begun after a VA physician has indicated that he/she does not believe a veteran is competent to manage his/her own funds. A finding of mental incompetency would require that there be clear and convincing medical evidence that leaves no doubt as to the beneficiary’s incompetency. (Incompetency should not be assigned due to a temporary 100% evaluation assigned during a hospitalization for a mental disorder.)
To begin the incompetency process, the VA must first send the veteran a notice informing him/her of its proposed finding of incompetency. The veteran then has a right to request a hearing on the matter.
Fortunately, there is a presumption of competency in place unless there is clear and convincing evidence that a veteran is not competent. You do have some avenues to pursue to oppose the finding.
Should the VA send you a notice that it is proposing or investigating a finding of mental incompetency on your behalf and you clearly should not be considered incompetent, then here are some options:
- Provide the VA with evidence of how you have been paying your bills (perhaps copies of checks you have written, copies of bills showing they are NOT past due, bank statements in your name, etc.)
- You might also obtain statements of friends, co-workers, neighbors, etc. that would illustrate how you are continuing to manage your daily affairs.
- If you have a doctor who believes you are still competent to manage your funds, he/she could write a letter to the VA on your behalf.
Knowing that this is a possibility may help you to be wiser about what you tell your doctors. Be careful about comments you make to your doctors as they may get entered in your records and misinterpreted. Comments such as “I always rely on my wife (or my son/daughter/brother or sister, etc.) to handle my bills” is not going to be helpful.
Of course, in some instances, it might be for the best for a veteran to be declared incompetent and have a trustworthy person manage his/her funds.
What will a finding of mental incompetency affect? It will mean that all payments made to you by the VA will be channeled through an appointed fiduciary. (Since the passage of the Brady Bill, it also would prevent a veteran from purchasing a firearm.)
The fiduciary appointment process might involve a visit from a VA representative who will meet with the veteran’s proposed fiduciary to determine that person’s capability and willingness to act as fiduciary. If a proposed fiduciary is a spouse who has already been paying the family’s bills, then he/she could provide records to the VA reflecting those past bill payments.
Perhaps it would be helpful to keep in mind that the VA is not simply trying to take control of a veteran’s life. In reality, the VA has a responsibility to make sure that disability payments that a veteran is receiving are being used for that veteran’s benefit and so are simply trying to protect the veteran’s well-being.