Concerning Veterans and "Incompetency"

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ZenArcher

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I've had a couple PMs concerning competency hearings. Although this hasn't happened to me personally I would take it seriously but at the same time I wouldn't worry. What follows is a quote of the pertinent section of the Code of Federal Regulations 38 CFR 3.353.
§3.353 Determinations of incompetency and competency.

(a) Definition of mental incompetency. A mentally incompetent person is one 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.

(b) Authority.

(1) Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance (38 U.S.C. 1922), and, subject to §13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes.

(2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary’s social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in §13.55 of this chapter; select a method of disbursing payment as provided in §13.56 of this chapter, or in the case of a married beneficiary, appoint the beneficiary’s spouse to receive payments as provided in §13.57 of this chapter; and authorize disbursement of the benefit.

(3) If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in §3.327(a) if necessary to properly evaluate the beneficiary’s mental capacity to contract or manage his or her own affairs.

(c) Medical opinion. Unless the medical evidence is clear, convincing and leaves no doubt as to the person’s incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations relative to incompetency should be based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency.

(d) Presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary’s mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency (see §3.102 on reasonable doubt).

(e) Due process. Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in §3.103. Such notice is not necessary if the beneficiary has been declared incompetent by a court of competent jurisdiction or if a guardian has been appointed for the beneficiary based upon a court finding of incompetency. If a hearing is requested it must be held prior to a rating decision of incompetency. Failure or refusal of the beneficiary after proper notice to request or cooperate in such a hearing will not preclude a rating decision based on the evidence of record. (Authority: 38 U.S.C. 501(a))


[36 FR 19020, Sept. 25, 1571, and 40 FR 1241, Jan. 7, 1975, as amended at 42 FR 2069, Jan. 10, 1977; 58 FR 37856, July 14, 1993; 60 FR 55792, Nov. 3, 1995; 66 FR 48560, Sept. 21, 2001; 67 FR 46868, July 17, 2002; 68 FR 34542, June 10, 2003]


Supplement Highlights references: 8(6), 19(1), 47(2), 57(1).
If you read parts (c) and (d) it says it must be proved and any doubt goes for the veteran. My thought/fear is that some offices/personnel may be using this as a fear tactic. If you're given a competency hearing after filing for an increase please either PM me or post in this thread.
 

sadiemae

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Thanks Jeff, The problem is many people feel that whats the big deal, I will just get the checks sent in my CALS name, and no problem. WRONG! Once it becomes a fidicuary issue, the VA actually can and will control how you spend the money. It can be a good thing, but can also be a nightmare. Once the VA has decided you are incompetent, they can basically do what they want. They can decide the spouse is not doing a good job, and appoint a stranger to do it, which you have to pay for, and then they decide what you can spend your money on. The horror stories I have read about are frightening! Once they propose to declare you incompetent, you have 30 days to appeal it, or ask for a reconsideration of the proposed incompetency. We immediately had our home health Psychologist come out and do an eval on him, and she found him to be competent. Still waiting on the decision.
 

Miss

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I was shocked to learn they are proposing incompetency for my husband. Ridiculous. Just because I handle the finances (and always have - I was a commercial lender at a bank for heavens sake!). We are planning to file for reconsideration. We have and appointment with the VA neurologist on Tuesday. I'm going to see what he can help us set up. I'll keep you posted.
 

ZenArcher

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I don't mean to make it sound trivial. I agree it is very important but the burden of proof is on the VA. I would believe that in most cases you would be able to get help/testimony from your entire care staff. I'm simply saying this should be an easy one with which to beat the VA soundly about the head and neck. If you need help go to PVA first. I'll help however I can.
 

Miss

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Talked to our regional PVA today. It was suggested that I get a letter from his physician (in our case, the neurologist) stating simply that he is competent to handle his affairs. This should take care of it. I believe the C & P doctor did it because my husband has not signed a POA - which is incompetent and an attempt to keep control of everything. However, just because he is being a jerk about that, doesn't mean he cannot handle his finances.
 

Miss

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Thanks Jeff. I appreciate the help you and Lori have offered.
 

sadiemae

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All our doctors said they could not write a letter stating he is competent because they had never discussed it with him. I think they just did not want to step on anyones toes!The competency issue is strictly about how you handle your financial affairs. And in our case, the examiner never even asked the questions, she just assumed I paid the bills, which I do not! We had our home health psych come out and do an eval. There should not be a problem. It is just the stress that this has caused Les that pisses me off. The thing is, the VA will propose this, and many people just feel that it is no big deal as long as the spouse gets the check. WRONG! Once rated incompetent, the VA will decide how and when you can spend your money.
 

StillSteve

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Am I right to assume that the question of mental incompentency will only apply to PALS with a diagnosis of FTD (provided that other, non-ALS-related conditions do not exist)? In other words, this is not something that the VA might initiate due to difficulties with communication or mobility, correct?

My wife and I are just starting the process of having my ALS diagnosis service-connected. I'm using the PVA (after the excellent advice to do so that I got here), and I saw a VA neurologist two weeks ago today. I'm just trying to understand everything I can about what we might expect eventually and/or should be prepared for.

- S
 

sadiemae

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No it has nothing to do with FTD. It comes into play when going for Aid and Attendance ratings R1 and R2. I will send you a link in a PM.
 
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