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.
Who has the authority to decide 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?
The following is a list of factors raters and decision-makers will look at in making a legal determination of competency:
- 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 only affects your ability to receive and handle VA funds. 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 competent?
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.
We hope this helps you understand the issue of incompetence, and for more information you can click here.
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