Today we’re discussing mental incompetence and what that means for VA benefits. Essentially the bottom line on that is, it’s a fiduciary incompetence. It’s the Department of Veterans Affairs saying that you as the veteran are not able to handle your benefits, meaning you’re not responsible enough to handle your benefits and finances. Once they make that decision, a number of things happen that we don’t like for our veterans.
- The VA picks somebody else to handle your money and financial affairs (appointed fiduciary). It could be somebody in your family, or it could be a total stranger you have to pay to handle your money.
- The VA takes away, or makes sure you have no possession of guns.
This is something you don’t want to have happen if there’s any way possible, okay. When this usually happens is, if someone has a VA exam by compensation and pension exam, and the doctor checks “you can’t handle your own funds.”
How does 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?
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.”
The VA Found Me Mentally Incompetent; Now What?!
If you’re found incompetent by your VA regional office, what they’ll do is they’ll propose that they’re going to find you incompetent, and they give you time to submit evidence. What you need to do, is you need to get statements from your wife, your children, your husband, for you to show that you have been competent all along. If you have a treating VA doctor, that helps a lot for them just 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.
At that point, what 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, no, I am competent. There’s no problem with our finances here.” “I submit the credit report. I submit a letter from the family saying who pays the bills, and who’s competent to do that. Usually, we don’t have a problem.” You really don’t want to be found incompetent if you can help it.
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, 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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