Another fiduciary question...

Discussion in 'General Discussion' started by deb1553, Jan 3, 2008.

  1. deb1553

    deb1553 Newbie

    First of all, this website and forum has been INVALUABLE to me, and I thank you so much!

    My question is about assigning someone as a beneficiary's fiduciary. I'll make my long story short: I applied for A&A last February for my mother, who has Alzheimer's and now resides in a dementia care unit at an assisted living home. At the end of August I received a letter from the VA awarding her the full benefit, which would be withheld pending appointment of a fiduciary. I immediately sent them a letter asking that I be appointed fiduciary.

    Now here it is, four months later, and nothing has happened, so I called the VA yesterday and spoke to someone who told me to write a letter waiving due process, then have my mother sign it.

    Having read your response to Bumblebee I now know that benefits can be paid directly while the fiduciary process is ongoing. My main question is this: Do I really want my mother to waive the process just to speed up payment? I assume that this would make her the direct beneficiary, and I wonder if there might be problems with this down the line, as her faculties decline further. It seems to me that I SHOULD be appointed fiduciary, no matter how long it takes! Having someone who has been determined to be "incompetent" sign away something seem kind of shaky to me.

    I wondered if you had any experience with waiving the fiduciary process?

    My mother has now been in assisted living for one year, which means one year of cleaning out her savings, life insurance, and home equity loan. And her rent has gone up, now, too. I know that I'm preaching to the choir here, but it's just so criminal, withholding benefits while their internal paperwork crawls along.

    Again, my thanks and appreciation go to you for all your help!!

    Deb Peterson
     
  2. veteranadvocate

    veteranadvocate Full Member

    Deb,

    Your question is a very good one. Without the knowledge of how the VA system works, this all can be very confusing. Actually, what they told you is a very good thing and I agree with their advice. The ‘due process’ means that the VA has to inform your Mother that the VA is proposing to appoint someone to take care of her money due to her condition. Your Mother has the right to object to this proposal and submit evidence why it should not be done. By having your Mother sign a statement that she does not object to their proposal and waive her right to the ‘due process’ (challenge their proposed action), the VA can move ahead with their action with the claim and payment.

    I hope this answers your concerns but if you have any questions please feel free in contacting us.
     
  3. bumblebee

    bumblebee Newbie

    Deb,


    I had my fuduciary interview about 4 weeks ago and just received a letter from the VA stating that I was approved. My mom should receive her back-pay (we applied in April '07 and will receive payments from May-present) any day and first benefit should be on or around Feb 08. It is a very long process, but will have been worth the wait when we get the check!
     
  4. vetadmin

    vetadmin Administrator Staff Member

    What awesome news and so happy to hear about a successful outcome! Glad you did not give up, and pressed on untill you got what your mom is entitled to.

    Thank you for sharing with us. Could not be happier for you!
     
  5. codchild

    codchild Newbie

    "Your Mother has the right to object to this proposal and submit evidence why it should not be done. By having your Mother sign a statement that she does not object to their proposal and waive her right to the ‘due process’ (challenge their proposed action), the VA can move ahead with their action with the claim and payment."

    I do not understand how the VA can ask Mom, who has dementia, to sign a document waiving her right to due process - if she has dementia she does not have the legal mental capacity to knowingly sign a document. While I think that the VA should appoint someone to advocate for Mom, I do acknowledge that this procedure will lengthen the already burdensome process, but if the VA is serious about "due process” then how can they allow Mom herself to waive this right. Would they accept a DPOA to waive this for her (one that Mom appointed in a document when she had full mental capacity, but not appointed by a court)?
     
  6. veteranadvocate

    veteranadvocate Full Member

    "Your Mother has the right to object to this proposal and submit evidence why it should not be done. By having your Mother sign a statement that she does not object to their proposal and waive her right to the ‘due process’ (challenge their proposed action), the VA can move ahead with their action with the claim and payment."

    I do not understand how the VA can ask Mom, who has dementia, to sign a document waiving her right to due process - if she has dementia she does not have the legal mental capacity to knowingly sign a document.

    The VA is not asking your Mom to waive her right to due process. They are advising her that the evidence of record indicates the possible need of a fiduciary to help handle her VA entitlement. They are advising her that she has 60 days to object to the proposal of appointing a fiduciary for her. The VA will not take any action until the end of the 60 day waiting period. At the end of the 60 day period, the VA will make a determination on the need to appoint a fiduciary or not, based on evidence of record.

    If the VA decides to appoint a fiduciary for your Mom, they will send out a ‘field rep’ to determine who should be appointed. This process could take several months to complete.


    While I think that the VA should appoint someone to advocate for Mom, I do acknowledge that this procedure will lengthen the already burdensome process, but if the VA is serious about "due process” then how can they allow Mom herself to waive this right. Would they accept a DPOA to waive this for her (one that Mom appointed in a document when she had full mental capacity, but not appointed by a court)?

    The following section is from the VA’s Adjudication Manual.

    b. Representation for Claimants in the Process of Being Declared Incompetent

    Until a fiduciary is appointed for a claimant in the process of being declared incompetent, accept the appointment of a POA representative from any of the following people in the following order:

    claimant

    spouse

    mother or father, or

    next of kin.

    Once VA appoints a fiduciary, he/she may appoint a new POA representative. The prior POA is not automatically revoked
    .


    I apologize for any confusion my earlier posting may have caused.

    The Veteran Advocate
     
  7. madlou

    madlou Newbie

    When the applicant has dementia or alzheimer's should a statement be included as part of the application waiving the right to the 60 days? Would this speed up the fiduciary process?
     

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