And we have a winner!! But wait!

Discussion in 'Fiduciary questions' started by dkutzli, Feb 6, 2013.

  1. dkutzli

    dkutzli Newbie

    After 6 months and a few extra items submissions, many hours of head scratching and more than enough frustration, I am happy to report that my father (WWII,92) and mother received an award letter yesterday. It looks like they are to get the max benefit and I have to thank everyone at this website for all the help. I could not have made head nor tails of all this without the guidance I received here. Thank You, THANK YOU! But if the story were to end there what would be the fun in that? The VA has determined to withhold the retroactive payments from July 2012 because they determined dad as incompetent for VA purposes. Dad has issues with eyesight and some cognitive impairment (did I mention he's 92?) but certainly nothing like dementia or worse. Mom is much the same, can remember the words to every song from 1939, can't remember what she had for breakfast yesterday, but both are in OK shape. Dad can't drive and so doesn't handle the finances most of which travel in and out of their account automatically under the watchful eye of my mom and myself.
    Anyway dad doesn't want to contest the decision for fear that the VA will take back his award. Question 1 then is, can they do that? Instead dad wants me to be named as fiduciary. I am POA and I know that doesn't matter but thought I would say it anyway. I am reading horror stories about having a VA appointed fiduciary, and frankly dad doesn't want those @*^&% involved, and the quagmire that is the fiduciary process for appointing someone. I hear it can take a year sometimes and it is a nightmare of paperwork and interviews and credit checks. I'm not concerned about those things, I have nothing to hide. And after the A&A process paperwork is my best friend and I have the 21-4138 ready to fill out with the predetermined copy found in the FAQ here to start the process. My second question then is, would it be better to contest the incompetency and try to avoid the slings and arrows (and again do we risk losing benefits) or move ahead with the fiduciary process and hope that dad lives long enough to see the retroactive money?
    Again you have not failed me so far and I turn to your wisdom once more.
  2. vetadmin

    vetadmin Administrator Staff Member

    Well congratulations are the first order of things here! Glad that you found the site and the forums helpful to you in this process, and a huge debt of gratitude to all those who contribute here.

    Here is the short answer for you. It will take longer to appeal the decison of incompetency than it will to go through the fiduciary process. Given their age, our recommendation is that you waive the 60 days on the reply, and move forward. It is the shorter process even though most would not consider it "short".

    Once you receive notification from the VA that they find it necessary for a fiduciary to be appointed you should submit Form 21-4138 and include the following statement:

    Please be advised that (parent's name) and I have no issue with the VA finding of incompetence and wish to proceed with the appointment of a fiduciary. We wish to appoint myself (her/his insert your relationship to the veteran) as fiduciary. I understand that I must be interviewed prior to that appointment and would appreciate such an interview be scheduled as soon as possible

    If your situation is one that the delay in payments will create an extreme financial hardship, you can include the following statement as a way of expediting payment:

    I respectfully question the withholding of my (parent's name) benefits, pending the appointment of a fiduciary. Referencing a VA policy: Pursuant to VA Manual M21-1, Section 17.15: Procedure Upon Receipt of Evidence of Incompetency, your manual states "Do not routinely suspend direct payments to a beneficiary pending development of an issue of incompetency or certification of a fiduciary." The manual further states: "If entitlement to benefits has been established but no payment has been made or if increased benefits are payable, make a determination as to whether or not benefits should be paid directly pending certification. The determination should consider if delaying the payment of the benefits would cause undue hardship for the beneficiary. If the evidence of record shows that delaying payment would create a hardship, properly annotate the award, referencing the evidence reviewed and the justification for paying benefits directly to the beneficiary." I think if you reference (parent's name) claim, you will see that withholding his/her payment does constitute a hardship for him/her. I would like to request that he/she receive payments during the fiduciary appointment process.

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