Question:
My father was found to be incompetent by the Va without a medical exam. My sister was helping him file for aid and attendance and wrote in detail what she was doing to assist our dad. She wrote that she prepared his bills, wrote checks for him to sign and balanced his checkbook. This is all it took for the Va to determine him Incompetent. No medical or psychology exams. Is this even legal? Also if he did not spiral in 60 days can he appeal layer?
Jim's Reply:
Yes, this is legal and standard operating procedure. During a C & P exam for benefits the veteran may be asked who takes care of his or her finances. If the veteran isn't capable of managing his own money a fiduciary may be appointed by VA. Often enough there is a lot of money involved and the VA has a lawful duty to ensure that the veteran is protected...even from himself or his own family.
An exam was conducted. That was during a C & P exam or review of records or the evidence you say was submitted telling VA that he is not able to manage his finances. That's all the exam necessary. Rating a veteran as incompetent to manage his finances doesn't require a lot of legal juggling so there is no hearing or anything like that. https://www.vawatchdog.org/fiduciary-appointments.html
Your sister made an error volunteering information in such detail...that's one reason no hearing is necessary...she's already told them he was incompetent. That wraps that up.
As soon as she described how much she did for him it became very apparent he couldn't do that for himself...thus he is incompetent to manage his finances. When dealing with VA we never answer questions that aren't asked and we never provide extra information because this is what happens. Blunt, brief, yes or no answers without elaborating extemporaneously is always best.
Often enough a family member is appointed as fiduciary. If a family member isn't eligible (credit or criminal history) to serve as a fiduciary the VA will appoint a professional fidu who will work with VA to manage his money.
If he objects to this it's best to appeal before the fidu is appointed. It's much easier to show competence prior to an appointment being made. Once the fidu is in the role it can be very difficult to have them removed. So you understand...when a fidu is appointed that individual is given a budget by VA for that veteran. Any amount of retro money and so on is not freely available to the veteran, every dime must be approved by VA and they approve basic living expenses and not much more. When the veteran passes, any remaining money is returned to the government. There is no disbursement of remaining funds to heirs.
You'll need some help...a veterans law attorney may be able to fix this so your father can manage his own benefits. https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html
