The VA’s definition of a person who is mentally incompetent is one who lacks the mental capacity to contract or manage his or her own affairs because of injury, disease, or old age. By “his or her own affairs,” they mean handling the disbursement of funds without limitation. Mental competency only refers to your ability to manage your VA benefit payment in your own best interest. It does not apply to anything else.
How does the VA evaluate mental competency?
When you go to the VA they’re likely going to ask a number of questions such as:
- Have you had a mental health compensation and pension exam?
- Do you know how much your bills are?
- Are you able to pay your bills?
A C&P examiner explains VA mental competency
Attorney Allison Reddick turns to Dr. Vonetes for a in-depth take on how the VA evaluates mental competency and what veterans should be careful to avoid:
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Free case evaluationWho has the authority to decide mental competency?
The raters in the VA regional office, the ones who make the rating decisions at the Department of Veterans Affairs, are the ones who have the sole authority to make official determinations of competency and incompetency.
Why was I declared Incompetent by the VA?
The following is a list of factors raters and decision-makers will look at in making a legal determination of competency:
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What is the impact of the injury or disease on your ability to manage your financial affairs, including consideration of such things as:
- Knowing the amount of your VA benefit payment,
- Knowing the amounts and types of bills owed monthly, and
- Handling the payment prudently.
- Are you capable of managing your financial affairs?
- The specific type of mental disorder or mental health condition that is affecting your emotional/behavioral state.
All veterans start with a presumption of competency, so it is automatically assumed that you are competent. For you to receive this presumption of competency there must be a balance of positive and negative evidence as to mental capacity. Where there is more evidence showing incompetency, then it cannot be presumed that you are competent. There has to be clear, convincing medical evidence that leaves no doubt that you are incompetent. If there isn’t that clear evidence, the rater will not make a determination as to whether or not you are competent without a definite opinion from medical authorities. If there is any reasonable doubt as to whether or not you are competent, the doubt will be resolved in favor of your competency.
What happens when I am declared incompetent?
When the RO proposes a finding of incompetency, they are required to notify you of this proposed action and of your right to a hearing. This notice is not necessary if you have been declared incompetent by a court or if you have had a guardian appointed based on a court finding of incompetency. If you request a hearing, it must be held prior to a decision of incompetency. The Veterans Claims Assistance Act (VCAA) does not apply to veterans seeking restoration of competency because it is seeking a change in how disability benefits are distributed, not a change to the veterans benefits themselves. Therefore, the VA does not have a duty to assist under the VCAA when it comes to determining competency.
A determination of incompetency can affect two things we don’t like for our veterans.
You would still be able to take part in the claims and appeals process just like any other veteran. But in order to receive payments and make sure they are used for your best interest, you will generally be appointed a VA fiduciary as part of the fiduciary program. A fiduciary could be authorized to collect a commission of up to 4% of your benefit payments for their work. But the fiduciary is not entitled to accrued benefits upon your death. The person appointed to be a fiduciary should be a family member and/or the person who cares for you, unless there are special circumstances. The fiduciary cannot be your power of attorney.
The VA’s decision of who they appoint as a fiduciary is appealable to the Board of Veterans Appeals and ultimately to the United States Court of Appeals for Veterans Claims. If there is a dispute as to who will be the fiduciary appointed, there are other ways that the VA can continue to pay you your benefit payments during the dispute. One of those is paying the person that has custody or control of you, or even just paying you directly. A fiduciary could be appointed even when there is no legal disability, if the VA finds it would be in your best interest.
How do I prove I am mentally competent to VA?
When a proposed finding of incompetency is made, you can appeal it and submit evidence in favor of competency. If you have already been found incompetent, what you could do is file a new claim to restore competency. When a veteran has been declared mentally incompetent for VA purposes, a request to restore competency does not require the submission of new and material evidence, even if the request has been made and denied many times before. This VA claim is taken procedurally in a similar way as a claim for increased rating is handled.
How To Fight Your VA Mental Competency Status
What you need to do, is you need to get statements from your wife, your husband, your children, etc. for you to show that you have been competent all along. If you have a treating VA doctor then it can be helpful for them to write a statement that says, “I’ve been treating this person for so long, and I feel they are competent to handle their own funds.
Another thing I like to do with our veterans, is to start preparing a record and typically do the following:
- Have the veteran go see an outside doctor, to examine him on what he is able to do
- Look in their day-to-day bills. Who’s paying the bills? Look at the bank statements. Are there overdraft fees or are there charges that shouldn’t be there?
- Review their credit. Is their credit good?
Looking at all that stuff to show, “Well, I disagree. I am competent. There’s no problem with our finances here.” We like to submit their credit report. I submit a letter from the family saying who pays the bills, and who’s competent to do that. Usually, this can be very helpful. You really don’t want to be found incompetent if you can help it.
What if I’m mentally competent but physically unable to handle my finances?
If you know your finances, but say you can’t physically write because of your hand, then you say, “Yes, I know how much my bills are and my spouse helps me because of my hand.” It’s important to not set yourself up for being found incompetent, if you really are competent. During the C&P exam, we see many veterans get tripped up in the following scenario and then receive the VA’s decision. It’s very common that one person in the marriage is the one who handles all the money, handles all the bills. A lot of times that can be the wife. What we see a lot is that a veteran says, “My wife handles all the money,” and then the VA doctor in the C&P exam right there, just checks that box, and says “Oh, he can’t handle his funds.” You know it’s not true but just be aware of that when you go in. Don’t fall for that trap. Make sure you tell them,” Look my wife handles the funds because it’s the arrangement we have, but I’m fine with money.”
What if you really need help paying bills?
On the flip side, if you’re just struggling with paying the money or it’s too much to handle, or just too overwhelming, that’s what the fiduciary is in place for.
At that point, you need to decide if there’s somebody in your family that you want to promote to the VA, that should be able to handle your funds, or you just want to go to a professional. If you can’t handle your funds, what becomes a problem is, is that, people could steal from you. Banks can charge you ridiculous fees. Credit cards could do the same thing. If you need it, it’s there, but that’s something you want to be thinking about going in, versus the VA come at you and say, ” You’re not competent. In our next section, let’s dive into a bigger breakdown of the law regarding mental competence and VA benefits.
How does the determination of mental incompetency work?
Veterans applying for benefits must be aware of, and know how to respond to, this type of situation. The VA is capable of proposing and implementing adverse actions that include more than just the denial of benefits, such as reducing disability ratings and arguably the most sensitive issue – declaring incompetency.
The VA will propose to find incompetent any Veteran 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.” The result of a substantiated proposal is the appointment of a fiduciary, whether the court orders the appointing of a professional, or possibly even a family member that provides supervision and oversight of the Veteran’s benefits. The VA’s intent here is genuine – protect Veterans who are indeed unable to effectively handle their own finances due to mental health problems. However, as with many government endeavors – the application of law is sometimes flawed considering many Veterans who face this proposal are actually entirely capable of governing their personal affairs, finances, disability claims, and do not need the VA to protect their VA disability benefits.
Can the VA randomly decide you are mentally incompetent?
Fortunately, like we mentioned before, Federal law pertaining to this subject mandates that specific requirements – or due process – be followed prior to a finding of incompetency being made. First, the Veteran must receive notice of the proposal and be provided with 30 days to respond. Next, the notice must outline the basis for the proposal and disclose the right to request a hearing, during which the Veteran may produce any supporting witnesses or evidence he or she so desires. Further, the VA is required to establish “clear and convincing” evidence that “must leave no doubt” in order for the finding to be implemented. The VA’s evidence may come from a variety of health care sources including medical evidence like from C&P exams for your VA rating, information contained within the C-file or even facts found by a VA “field examiner”.
There are several other noteworthy safeguards, meant to protect Veterans, found within the law. Most importantly, the law requires any doubt be resolved in favor of the Veteran – similar to service connection entitlement. Veterans may also appeal findings of incompetency through the same judicial review process as with the denial of benefits. Lastly, the finding of incompetency is not always permanent and subsequent changes in status do not require disability ratings to change to name a few.
Regrettably, two Veteran groups susceptible to this adverse action are the elderly and those with significant mental disorders and psychological disabilities. Although, these attributes do not automatically justify a rating of incompetency. If you, or someone you know, receives this type of notice regarding a potential determination of incompetency – and you disagree with the proposal – remember that you are entitled to due process and should contest the action immediately.
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