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2.18. Fiduciary Program: Incompetency Determination

Generally, the first notice that VA has targeted a veteran for its "fiduciary program" is a letter stating that "We have received information showing the because of your disabilities you may need help handling your VA benefits." The letter will then state that "We propose to rate you incompetent for VA purposes" or something similar. This letter, the associated rating decision, and the proper response, is very important because a veteran receiving this notification has very important rights. But, a veteran must act and quickly to preserve those rights.

First, a veteran has a right to a hearing and a right to present evidence and argument regarding why the incompetency finding is incorrect. VA will tell you (usually on the front page of the notice) that you have 60 days in which to respond. This is true. Somewhere later in the notice VA will tell you that if you submit a hearing request within 30 days, not only will you receive a personal hearing, but VA "will continue to send payments to you" until after the hearing and a decision is issued." This is a critical difference. If a veteran submits a hearing request along with his evidence and argument challenging the proposed finding more than 30 days after the date of the notice, VA will stop sending his VA benefit payments.

Unless there is absolutely no question regarding a veteran's ability to handle his finances, a personal hearing should be requested, if only to keep VA paying benefits until the issue is resolved.

Second, VA has the burden to establish a veteran's incompetency. VA must have medical evidence, not just a rater's opinion, to support its decision. VA must give a "presumption in favor of competency" absent evidence to the contrary. See 38 C.F.R. 3.353(d). Further, the medical evidence that supports an incompetency decision must be "clear, convincing, and leaves no doubt as to" the purported incompetency. Id. 3.353(c).

A veteran may challenge the sufficiency of the medical evidence VA relies upon to support an alleged inability to handle his or her funds. Experience has shown that VA has relied upon a veteran's statement that "his spouse handles the bills" to propose (and find) that a veteran was incompetent. Such statements, without more, should be challenged and VA made to produce, if it can, adequate medical evidence.

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