Thursday, November 15, 2012

Finding of Incompentency in VA Disability Case.

Generally, the VA will pay veteran's disability benefits directly to the veteran who is entitled to them. However, in cases where a veteran has been found to be incompetent, or is otherwise ineligible to receive benefits, the VA is authorized to appoint a fiduciary to receive the and spend funds on the veteran’s behalf.
 When the VA first proposes to appoint a fiduciary, a veteran can object to a finding of incompetence. However, once a fiduciary has been appointed, the relationship falls solely within the jurisdiction of the VA. This means that veterans who were assigned irresponsible or incompetent fiduciaries have found themselves with no remedy. However, a recent decision from the Court of Appeals for Veterans Claims indicates that this may be changing.
 On April, 26 2011, the Court of Appeals for Veterans Claims issued a decision in Henderson v. Shinseki stating that the assignment of a fiduciary is subject to judicial review. The Court explicitly authorized veterans to challenge the appointment of a fiduciary by filing a Notice of Disagreement and appealing to the Board of Veterans Appeals. While the extent of the right to appeal is unknown, this decision is a very encouraging sign for veterans who find themselves at odds with the VA’s Fiduciary Program.