Jim,

Received notification that my husband has been rated at 100% disability after his stroke. Received a notification that the Va proposes that they may appoint a fiduciary.

We have been married for 43 years and his disability checks to this point is being deposited in a joint account which I manage. His vision is slightly cut off on the left side, therefore I handle and pay all the bills. What is the next step? Do I submit “statement in support of claim” stating the situation? Or do we request a hearing? So confused ?

Reply:

If your veteran is unable to manage his own finances, VA will proceed to appoint a fiduciary. There is no escaping that fact. If he is competent to manage his finances, then and only then should you appeal that appointment of a fiduciary.

VA should give you the first consideration as the fiduciary that they will appoint. If your credit history is OK and you don't have any significant issues with an arrest record, filing for bankruptcy or similar, it's likely that you will be the one who is appointed. If there are blemishes to your record, VA is likely to appoint an outsider as the fiduciary.

There is little that you may do to avoid this. Only if you can show that he is competent to pay his own bills and manage his checkbook would an appeal be successful. From what you tell me, he may be competent to manage his finances if the stroke left him with just a slight visual defect. All too often, the C & P examiner will ask, "Who pays the bills at your house?" and when the veteran answers, "My wife does." the examiner makes the note, "Veteran is incompetent to manage his finances." Of course that ignores the fact that most American households have just one person who pays the bills.

If he is competent, you should write an appeal letter in response to any notice you receive that VA is proposing to appoint a fiduciary. The letter must come from the veteran over his signature only. It should be very brief and simply state that he disagrees with the thought that he is incompetent and that he pays his own bills and manages his bank account. Don't elaborate, make that statement and send the letter via certified mail.

If VA finds him incompetent and you are appointed as the fiduciary, you will have to account for the money to someone appointed at VA. Before any of this happens, I'd suggest that you open another bank account in your name only...not his. Then transfer any funds you may share in the original account into the 2nd account. Leave the original account open for the deposit of his VA check. The reason to do this is that VA may attempt to seize and control any account with his name on it. If you have a large balance, VA will say they don't know which of the money is VA money and they will seek to control all of it.

Having a fiduciary appointed is sometimes necessary to protect veterans who can't help themselves. In cases like yours, it seems to be totally unnecessary but that won't stop VA. The approach that VA takes, when compared to the SSA for example, seems draconian and designed to punish the veteran. There are attorneys fighting today to force change on the way VA handles fiduciary issues but progress is slow.

Don't forget to read http://www.vawatchdog.org/fiduciary-appointments.html and to check the VAWatchdog blog often to look for developments to the VA fiduciary program.