After 13 months A&A Approved! -- Now Questions re 21-4138 and Fiduciary

Discussion in 'General Discussion' started by stevens, Apr 17, 2013.

  1. stevens

    stevens Newbie

    First, thanks so much for this site! Never could have gotten this far without you, Debbie, and all the others who participate.
    Mom is 97 with Alzheimers, the surviving spouse of a WWII vet. After 13 months -- and the help of our senator -- she was approved for A&A benefits.

    With the approval came info about appealing along with a form 21-4138 that had a sample statement. The sample statement basically acknowledged her rights to due process and the rights she'd lose (such as owning a handgun) if found incompetent. The final paragraph read "Having stated my rights to due process I hereby waive my rights to due process regarding this issue and I request you make your decision based on the evidence of record without delay." I hadn't seen this mentioned elsewhere. It seems okay to include this in my statement but thought I should check first. I also intend to include the paragraph suggested on this site ("Please be advised that I have no issue with the VA finding of incompetence..."). And to also include the paragraph suggested to avoid holding of the benefits ("I respectfully question the withholding of benefits..."). Just wanted to check that this is the correct way to handle this, mostly because I haven't seen a reference to the wording the VA sent me.

    I'm unsure about two other things on this form. At the top it asks for the name of veteran so I assume I put in my late father's name, even though my mother is the claimant.

    As for the statement and signature: Should the statement read as though it comes from my mother or from me? And should it be signed by my mother (even though she's admitting incompetence) or should I sign it for her?
  2. stevens

    stevens Newbie

    Now the Fiduciary question... I would like to be her fiduciary but I had a bankruptcy almost 4 years ago. I'm the only child and my mother lives with my wife and me. Her expenses exceed the VA benefit (and exceed the benefit plus all her income) so I pay all her expenses that she can't pay. Is it worth trying to be her fiduciary or am I just wasting time?

    Possibly complicating matters... I've paid her expenses over the past 13 months. I'd like to be repaid for at least some of this from her withheld benefits. Will this create a problem? I can document expenses and these are to third parties (caregiver) or verifiable living expenses. My wife and I take care of her the 20 hours per day we don't have a paid caregiver but don't charge for that. But for expenses like clothes, diapers, and reasonable room and board I'd like to be repaid, if there's money available for that. Is there a proper way to do this?
  3. stevens

    stevens Newbie

    One last question... Does the monthly benefit they say they'll pay on 5/1 become part of the withheld funds or is it direct deposited to my mother's account?
  4. maralina1

    maralina1 Full Member

    Congratutulations to you and your Mom!

    Your Dad's name and SS should go at the top of the form. The VA will know this is for your Mom from the original application. Your Mom will need to sign the form and continure to sign any forms until a Fiduciary is approved.

    Your Mom will recieve her monthly benefits immediately. The 13 months retrocative pay should be withheld until a Fiduciary is appointed.

    I have read on this site that the VA will not consider anyone who has filed for bankruptcy as a Fiduciary. I am not sure. Maybe someone who has been through this situation can jump in.

    Good Luck
  5. maralina1

    maralina1 Full Member

    Forgot to add that the wording for the 21-4138 seems fine. The only statement we did not include was the " Repectfully question the withholding of benefits".
  6. stevens

    stevens Newbie

    Thanks Maralina1. The "I respectfully question..." wording came directly from elsewhere on this site.
  7. vetadmin

    vetadmin Administrator Staff Member

    Congratulations!!! Glad that we could be here to help get through the process.

    The letter needs to be from your Mom, and yes, she signs it.
  8. suse

    suse Jr. Member

    I read somewhere here of someone who had filed bankruptcy over 10 years ago & they did get approved. I am hoping & have applied to be fiduciary for my husband after a bankruptcy 11 years ago. I feel hopeful since it involved a sole proprietorship & the fact that we have reestablished our credit rating since then. No meeting scheduled yet but will post when the decision is made. God luck!

  9. vetadmin

    vetadmin Administrator Staff Member

    She should get her first payment deposited to her account on May 1. It is the accrued amounts that will be withheld until you go through the fiduciary process.

    The bankruptcy is going to be a factor. If your wife was not part of that filing, you might want to consider having her appointed.

    You will need to have your proof of payments on her behalf and ask the Field Agent about that reimbursement. If your wife or another family member can step up, the you can repay some things from the back award, but not rent as you are not a licensed facility. You could charge for the care you have provided.
  10. stevens

    stevens Newbie

    Thanks Suse and Vetadmin for the helpful responses.

    So monthly benefits are paid to my mother... Does she continue to get those payments after the appointment of a fiduciary or are those benefits then paid to the fiduciary for distribution? Basically I'm wondering if the fiduciary relationship is ongoing or ends once the accumulated benefits are paid out?

    My mom, myself, and my wife own our house together. So I wouldn't be charging her rent but (possibly) seeking reimbursement for her 1/3 share of the mortgage, which I've been paying.

    If we were to "charge" her for our caregiving what is the standard or reasonable or acceptable? What for food, utilities, etc?

    Mom has no assets left and what we pay for a caregiver to come in four hours a day amounts to about 90% of what she'll get monthly from Social Security and the VA combined. So some of this is academic but as much as possible I'd like to be repaid for what I spent on her behalf. I don't mind paying for things she needs but I don't want money sitting in some fiduciary's account while I'm borrowing to pay her expenses.
  11. stevens

    stevens Newbie

    Well it appears Mom's current month A&A payment is being withheld along with the past amounts. All they paid was a $200 for "Counted Social Security Retroactive payments; adjusted medical payment; released funds date last paid."

    I asked the VA for clarification via email. Is there any reason to ask the Senator's office for more help?

    I'm starting to really hate the VA. I don't think they're remotely interested in helping Vets. I'm sure there are some good people there but their conduct is reprehensible.
  12. vetadmin

    vetadmin Administrator Staff Member

    I am at a loss as to what is going on with this.

    Hate to say it, but you will need to speak with the VA to get an understanding of what and how they ruled on this.
  13. stevens

    stevens Newbie

    I queried the VA and will see what they say but I think what may have happened is they reduced her medical expenses based on a line in a letter from her that said in regard to her caregiver expenses: "I am now out of money and my son is paying these bills for me. Unfortunately, he doesn't have much money and has to borrow to pay for my care."

    How can I best correct this without causing a 2 year appeal delay? There's a suggestion in their letter to use VA Form 21P-8416 for additional medical expenses. Is that the best thing to do?

    Do I need an agreement with my mother that anything I spend on her behalf is a loan? (I'm her POA but if I do such an agreement should I have her sign or sign as her POA?)
  14. vetadmin

    vetadmin Administrator Staff Member

    I'm sure her statement did have an impact, and this line would have been better left out.

    Do not do an appeal, do a Statement in Support of Claim, and show her zero or negative at the end of the month after paying for care.

    You can draw up an informal agreement between the two of you, but she does have to pay you for the care you provide.
  15. stevens

    stevens Newbie

    Mom has no assets and receives $1200 a month from Social Security. The caregiver agency charges $900 every half month for 4 hours per day @ $15 per hour. My mom pays the first $900 bill of the month from her Social Security. I pay the second $900 bill per month for her. I have a loan agreement with her that she will repay me what I loan her plus 1% interest per month for amounts lent. There is a Caregiver agreement for the other 20 hours per day between her and my wife. My wife charges $90 per day for 20 hours of in home care, plus 1% interest per month on any balance unpaid after 90 days. Neither my mother nor I have yet paid my wife.

    My goal is simply to get the benefit restored to the full $1,113 and to have claims on the withheld amounts when a fiduciary is appointed. I need this to pay down some debt I took on to help pay for my mother's caregiver and her other expenses. I won't get into the other expenses but they've been significant even if not considered for VA purposes. Is what I outlined above okay or should I simplify it somehow?

    I intended to send a cover letter from my mother to the VA with the backup of her caregiver checks plus my caregiver checks plus the loan agreement with me plus the caregiver agreement with my wife and her invoices so the full benefit can be restored. But should I send the statement in support of claim instead of a letter? And should I include the canceled checks, the agreements, and the invoices from my wife?
  16. vetadmin

    vetadmin Administrator Staff Member

    Do not send all this information to the VA regarding loans etc. The only thing you want to do is show she is negative at the end of the month after paying her care expenses period. How the rest gets paid it not the VA's business. All they need to know is she wipes out her personal income at the end of the month.
  17. vetadmin

    vetadmin Administrator Staff Member

    Do not send all this information to the VA regarding loans etc. The only thing you want to do is show she is negative at the end of the month after paying her care expenses period. How the rest gets paid it not the VA's business. All they need to know is she wipes out her personal income at the end of the month.

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