This section addresses two similar concepts that may, in some instances, be interrelated: guardianship and the VA Fiduciary Program. Both are intended to help veterans who have mental or physical disabilities rendering them incapacitated in some fashion, but both work in very different ways. This section first explains the different types of guardianships, how to obtain a guardianship, what kinds of issues and conditions are covered by guardianships, and conditions that are unique to disabled veterans.
The VA Fiduciary Program, on the other hand, is a VA program that appoints a person to manage the veteran’s VA benefits money when the veteran lacks capacity to do so. Unlike a guardianship, which can extend to all areas of the veteran’s life, the VA Fiduciary Program is more narrowly focused on administration of VA benefits funds only. This section will explain how the VA Fiduciary Program works and how it is both different from, and complimentary to, a guardianship; how the need for a fiduciary is determined; and how you can help your veteran by obtaining a fiduciary.
Users of the Caregiver website dealing with more complex guardianship and fiduciary challenges may want to refer to the next-step legal resources discussed at
Lawyers for Heroes after reviewing the general information presented in this section.
A guardian is a person who is legally responsible for managing the affairs of an incapacitated person. A person formally can become a guardian only if appointed by a court. If your veteran has a physical or mental condition giving rise to an inability to make decisions regarding financial matters and/or his or her daily needs, you may consider having a guardian appointed to make these decisions on behalf of your veteran. If you are appointed as a guardian, the court’s order will describe the types of decisions you now legally are allowed to make for your veteran, and your veteran will no longer have the legal ability to make these decisions.
The process for becoming a guardian is controlled by state law and likely will vary somewhat from state to state, but the typical process involves a court taking two steps:
Your veteran will receive notice of a hearing on the guardianship petition. Your veteran is allowed to object to the appointment of a guardian. Your veteran has the right to be represented by an attorney in the process; in some states, the court may appoint an attorney if requested. There is also a right to be present at the hearing; and under the Americans with Disabilities Act, your veteran has the right to court accommodations if he or she has limitations that make participation in the court proceeding difficult. You also should be aware that even though you may ask the court to appoint a guardian out of a concern for your veteran’s well-being, a guardianship will terminate your veteran’s legal ability to make decisions for himself or herself, which is a very serious matter. As a result, the court will be concerned about protecting your veteran during the guardianship process. The court may appoint an objective third party, often called a guardian ad-litem or court visitor, to review your veteran’s case, examine medical records and talk to witnesses, and to then issue a formal report to the court giving an opinion, based on all of the evidence, whether a guardianship is appropriate. The court will weigh this opinion very heavily.
Having a guardian appointed requires the filing of a complex legal action that is likely beyond the ability of a layperson. If you wish to seek a guardianship for your veteran, you probably will need a lawyer. Many organizations provide pro bono (no cost) or low-cost lawyers for this kind of case. Refer to American Bar Association's Directory of Programs for information about these kinds of lawyers in your state.
Determining capacity is a complex process that depends on the evidence provided to the court, which can include testimony of friends, family, and caregivers; medical evidence; possible criminal activity or activity that would hold the veteran civilly liable (like not paying bills); and other evidence. A court will want to ensure the person’s condition is quite serious and not just because of, for example, a lack of attentiveness to the activities of daily living — a court will be looking to see whether the person is gravely disabled. The court will require at least a statement from a physician or another clinician and may order evaluations by additional experts, such as neurologists, social workers, and psychologists, to determine the capacity of your veteran. If your veteran has received a disability rating from the VA, this might be one of the strongest pieces of evidence of incapacity, but it does not automatically lead to a guardianship. Many other factors might come into play. See the information on this site about How the
VA Establishes Incapacity and also documents at the following places:
determinations of incompetency and competency and
conditions that determine permanent incapacity for self-support.
The American Bar Association and American Psychological Association have published a handbook that describes, in detail, how to make assessments of diminished capacity. Though the handbook is targeted at determining incapacity in older adults, the same principles apply to wounded veterans.
Ultimately, however, if you believe your veteran to be incapacitated and in need of a guardianship, you first should talk with a lawyer who can best evaluate how to build such a case. The American Bar Associations's Directory of Programs can provide you with information about pro bono and low-cost programs in your area that might be able to connect you with a lawyer to provide this assistance.
However, before you file for guardianship, be sure you have explored other less restrictive options for decision making that don’t result in court removal of rights. Perhaps your veteran is able to execute a financial power of attorney and a health care advance directive — see the information on this site about Powers of Attorney to learn more about this process and the requirements.
The guardian’s legal responsibilities will be spelled out in the court order appointing the guardian. As a general rule, however, there are two broad categories over which a person may be appointed guardian.
The first is guardian of the estate, or guardian of property. This type of guardian manages some or all of your veteran’s property and finances. Depending upon what state law and the court’s order requires, this type of guardian must provide a regular accounting to the court about how the veteran’s finances and property are being managed and how money, benefit income, and assets are utilized; there might be certain decisions that first will require court approval before the guardian can make them.
The second type is guardian of the person. This guardian is responsible for assessing and meeting some or all of your veteran’s physical, mental, and emotional needs and providing whatever assistance is necessary for daily living activities. When serving as guardian of the person, the guardian might be required to provide the court with a care plan that describes how the veteran’s personal needs will be met and then might be required to give periodic reports to the court on how the plan is being implemented. All states require at least a status report describing the current health status, living arrangements, and services provided to the person. State law might impose certain limitations on what kinds of decisions a guardian of the person may make without prior court approval, such as prohibiting the veteran from being involuntarily committed to mental institution or being admitted to a nursing home.
If your veteran’s incapacity is not severe, the court may characterize the guardianship as a limited guardianship, which would authorize the guardian to make only certain kinds of decisions for the veteran. Regardless of what the guardianship is called, the court’s order very clearly will spell out what the guardian is legally entitled to do for any given veteran.
Court-appointed guardians for veterans in particular will have a range of responsibilities, and these extend not just to the personal care of their veterans but also to other tasks that might be more relatively mundane, such as filing and submitting paperwork related to VA benefits. Though these kinds of activities might seem not as important as other things, such as providing medical care, under the legal obligations imposed by the guardianship, they are just as important and should not be overlooked.
Your court order of guardianship will be legally effective in the state where the court appointment was made, regardless of whether you move to a different state. There is no guarantee, however, your guardianship will be fully recognized in a new state if you move. There are a couple of key issues to consider when thinking about moving under these circumstances.
First, the court order of guardianship may require periodic reports or appearances in that state’s court for the duration of the guardianship, and you will need to comply with these requirements. This might mean travel back to the state where the guardianship order was entered. Also, it is likely your guardianship is good for only a specified period of time, which is defined by state law. After the expiration of this time, you might have to renew the guardianship. So, for example, your guardianship order might say it expires after five years, and if you move to another state during that time, you may or may not be able to renew the guardianship in your new state and might have to return to your prior state — which then might find it i no longer the correct state, at which point you might need to file a new case in the new state. You might need to seek permission from the court to move your veteran out of state. Thirty-seven states have adopted a uniform guardianship jurisdiction law that makes moving from state to state easier — but this is still a complex area and you should consult an attorney before moving.
Second, you might run into problems with organizations or providers in the new state that do not recognize the out-of-state order. For example, if you seek to obtain medical care on behalf of your veteran at a facility in your new state and you present your out-of-state order, the staff at the medical facility might be unfamiliar with your type of order and be uncooperative. This might not be legally appropriate, but it is the type of practical problem you might encounter. In states that have adopted the uniform jurisdiction act, you can register your order in the new state, and then providers will recognize it. Typically, this will be done in your new state’s court, and the procedure will vary from place to place. Consult an attorney on this process.
The best advice: If you have a court order of guardianship and anticipate moving in the future, or if the opportunity to move presents itself later on, consult with an attorney — preferably the one who assisted you with the guardianship in the first place. The attorney can advise you further about your options.
First, you should review the power of attorney to ensure it is still in effect and has not expired. If it has not expired, you then need to determine the type of power of attorney that you have. In the situation described in the question, your veteran has given you the legal right to make the decisions described on the power of attorney on his behalf. If the power of attorney you have is not described as a durable power of attorney and/or explicitly states it remains in effect even after incapacity, then your power of attorney will not be effective to allow you to make legal decisions for your incapacitated veteran.
In short, you cannot use a power of attorney to make legal decisions for an incapacitated person unless the power of attorney explicitly says so. Further, a person cannot grant or sign a power of attorney once that person lacks the ability to understand the transaction.
Even if you have a durable power of attorney that remains in effect after your veteran loses capacity to execute the document, it may not give you the full range of legal authority you need to properly care for your veteran. So this type of power of attorney might or might not be an adequate substitute for a guardianship.
A durable power of attorney does not limit your veteran’s ability to act on his or her own. If your veteran has a significant incapacity and is making legal decisions that are harmful to himself or herself and others (such as borrowing money he or she cannot afford to repay), a guardianship might be necessary to limit the enforceability of legal decisions the incapacitated veteran made.
For more information, visit our Powers of Attorney section of this site. If you have a power of attorney and a veteran with diminished capacity, seek legal advice about what your power of attorney does (and does not) allow you to do and to get advice about whether a guardianship still would be a good idea. Visit the American Bar Association's Directory of Programs for a resource near you that can provide you with this legal advice.
You have the right to go to the court that issued the guardianship and raise your concerns through a formal request in the form of a petition. If you believe the guardian is abusing or exploiting a veteran, contact adult protective services. You also could contact the state protection and advocacy agency that represents the rights of individuals with disabilities, as well as the office of the state attorney general. A list of all Protection and Advocacy agencies nationwide
is available here, and your state attorney general’s office information
can be found at this link. You also are encouraged to locate assistance through the American Bar Association's
Directory of Programs to obtain legal advice on how to proceed. Many pro bono and legal aid organizations have guardianship specialists who might be able to help.
If the VA determines your veteran lacks capacity in a way that interferes with his or her ability to manage financial affairs, the VA will appoint someone to serve as a VA fiduciary. The VA fiduciary is somewhat similar to a guardian of the estate, with three important limitations: First, the fiduciary is not appointed by a court. Second, the fiduciary is in charge of administering only those benefits the veteran receives from the VA. In some cases, this responsibility may extend to administration of all of the veteran’s financial matters if his or her VA benefits income is combined, as in a checking account, with the veteran’s other funds. Third, the VA, and not the court, will have oversight.
Generally, the VA will find a veteran requires a fiduciary based on the medical condition giving rise to the claim to VA benefits in the first place. But if a veteran has been determined to be lacking capacity as a part of a guardianship proceeding, that also might be an instance where the VA will select a fiduciary, which might or might not be the court-appointed guardian.
One other point regarding the VA Fiduciary Program: In addition to wounded veterans, a VA fiduciary also might be required to be appointed for a veteran’s beneficiary if that beneficiary receives VA benefits. For example, if a deceased veteran has a spouse who is eligible for the veteran’s VA benefits, but the spouse is incapacitated due to mental illness, the VA may require a fiduciary for the spouse. Similarly, a minor child of a deceased veteran may have a fiduciary (which may be the child’s surviving parent) required to receive the veteran’s benefits.
An important thing to be aware of when dealing with the VA: It tends to use terminology that has very specific meanings under the law but has very different meanings in the way the VA uses it. Incapacity in the guardianship context is a legal status determined by a court after a thorough review and assessment of objective evidence about a person’s physical and mental condition. The VA determines someone is incompetent based on a VA rating decision, a court decree, or both a VA rating decision and a court decree. The VA generally receives incompetency information from VA examinations, VA outpatient treatment records, private treatment records, or a court order that a beneficiary might be unable to manage his or her financial affairs (including disbursement of VA funds).
A VA incompetency determination for purposes of appointment of a fiduciary concerns only the beneficiary’s inability to manage VA benefits and is not the same as incompetency under guardianship law. (States at one time used the outmoded word incompetency for guardianship, but most state laws no longer do so.) The VA can determine someone incompetent simply by having a field manager meet with the veteran, talk to family members, and conduct whatever background review the field manager deems appropriate. It is a far less rigorous process and therefore is not the same as incapacity under the state guardianship law. A determination of incompetence by the VA can be used as evidence presented in a guardianship proceeding, but a court is not required to find a veteran incapacitated just because the VA has said so.
You also might find other confusing uses of terms by the VA — for example, the VA might use the terms guardian and fiduciary interchangeably. A guardian is someone appointed by a court, as described above; a VA fiduciary is someone appointed by the VA to oversee an incompetent beneficiary’s funds. While they sometimes can be the same thing (as when a court appoints a guardian who also is designated by the VA to serve as fiduciary), they are not always, by definition, the same.
All of that said, regardless of whether your veteran needs a guardianship, if you believe that he or she would benefit from a fiduciary, you can request this directly from the VA. Contact your local VA office and ask for the form to request a fiduciary. Evidence you will need to provide the VA to start the process will include:
Upon receipt of this request, the VA will have a field examiner investigate the need for appointment of a fiduciary and make a determination.
Following the receipt of notice of your veteran’s incompetency or legal disability, the VA will appoint a field examiner to personally assess the competence of your veteran in an initial appointment. In the initial appointment, the field examiner will base his or her assessment on your veteran’s capacity to manage funds.
The assessment of your veteran’s capacity to manage funds is determined in part by:
In addition to assessing your veteran’s capacity to manage funds, the field examiner also will inquire into your veteran’s physical and mental condition. In evaluating your veteran’s physical and mental condition, the field officer might ask questions and seek information relating to your veteran’s:
The field examiner also may evaluate your veteran’s social adjustment and perhaps work experiences. This may be determined by information about:
Along with inquiring into your veteran’s social and industrial adjustment, the field examiner also will evaluate your veteran’s environment. The field examiner’s evaluation of your veteran’s environment may involve questions relating to your veteran’s:
Further, you might be asked to provide information on or access to your veteran’s:
Several kinds of people may be appointed as a VA fiduciary for a veteran. When determining who should serve as fiduciary, the VA first considers the veteran’s preference. A spouse or parent most often is selected as a fiduciary, but the fiduciary could be someone else, such as a court-appointed guardian or the chief officer of a care facility where the veteran is receiving treatment or is institutionalized (if the veteran has no spouse or children and the benefits are paying for the veteran’s care). When no other appropriate person or entity is willing to serve without a fee, the VA may appoint a paid federal fiduciary, who may be a person the veteran does not know and who receives up to a 4-percent commission out of the veteran’s benefits for providing the service.
As to eligibility, there are several requirements to become a fiduciary. The VA conducts a field examination prior to the appointment of a fiduciary, which includes a face-to-face meeting with the veteran at the veteran’s residence. The VA also conducts a face-to-face meeting with the prospective fiduciary and conducts an investigation that includes a review of the individual’s credit history and criminal background. To prevent the misuse of benefits, the VA thoroughly investigates all fiduciaries prior to their appointment. In selecting a fiduciary, the field examiner first will determine the most effective, practical, and/or economical type of fiduciary appropriate to the situation, while also considering your veteran’s requests. To be appointed as your veteran’s fiduciary, the field examiner must determine you to be suitable to serve in such a capacity.
To determine your suitability, the field examiner may request, in addition to being present at a face-to-face interview, you provide information and documentation relating to your:
The requirement to have a credit report review may be waived for:
Once appointed, the fiduciary must comply with VA rules about segregating the veteran’s funds, reporting to the VA about the use of funds, and any other oversight the VA exercises over the fiduciary. VA oversight is necessary to ensure the veteran’s needs are met and to prevent financial abuse of the veteran by the fiduciary. The VA also has the power to replace a fiduciary.
While it might be preferable that a spouse or parent serve as fiduciary, the process is not automatic. If the VA determines the veteran is incompetent, determined to need a fiduciary, and you are a spouse or parent wishing to be appointed as fiduciary, you should contact the VA regional office that sent you the letter of determination. Notify the regional office of your desire to serve as a fiduciary and provide your contact information.
Whether a power of attorney is in place might have no bearing upon the selection of the fiduciary by the VA. If you have a power of attorney and the VA has selected someone else to serve as fiduciary against your wishes, first seek legal advice about whether you may appeal the appointment on behalf of the beneficiary. The American Bar Association's Directory of Programs provides you legal resources in your community that might be able to help. Of course, if you are the agent under a power of attorney, you might have authority over other matters outside of VA benefits.
Only the beneficiary can challenge the VA’s decision. The beneficiary or the designated VA representative (under a power of attorney) should begin the appeal process by filing a Notice of Disagreement with the VA regional office that appointed the fiduciary.
The VA’s determination of incompetence is utilized by the VA in determining whether the veteran can manage his or her financial affairs related to VA benefits and therefore requires a fiduciary. If the veteran has been deemed incapacitated by a court as a part of a guardianship proceeding, however, the court may transfer the veteran’s authority to make his or her own decisions about all manner of issues to the guardian. These restrictions will be spelled out in the court’s order.
All of that said, you might be surprised to learn a determination of incompetence by the VA will result in a veteran’s loss of the ability to own or obtain a firearm or ammunition. The Brady Bill imposes this limitation on those determined incompetent by the VA. This restriction is spelled out in the letter from the VA to the beneficiary that is sent when the VA determines a fiduciary might need to be appointed.
If you have been appointed as a guardian by a court, the court’s order very clearly will spell out what types of decisions the guardian legally is entitled to make for the veteran. The veteran no longer will have the legal ability to make these decisions and the validity of the transaction would have to be verified. Visit the American Bar Association's
Directory of Programs for a resource near you that can provide you with this legal advice.
As a VA fiduciary, you are responsible for ensuring the use of the veteran’s VA funds is wise and in his or her best interest. Whether you should honor a financial obligation depends on the circumstances and the funds available. The best prevention for a VA beneficiary entering into a transaction without a fiduciary’s knowledge is to communicate with the beneficiary. The beneficiary should know the fiduciary will consider favorably any reasonable purchase and will facilitate the transactions. You are responsible for making decisions based on the beneficiary’s unique circumstances, needs, desires, beliefs, and values. Beneficiaries in the fiduciary program are entitled to the same standard of living as a beneficiary with comparable resources who is not in the program.
As a fiduciary, you have an obligation to protect VA benefits from creditors’ claims. In addition, you can take steps to prevent the occurrence of financial transactions made without your knowledge. You must keep open and regular communication with the veteran about his or her VA benefits. Also, there are several rules to follow when managing VA benefits for the veteran. First, you must establish an account in the veteran’s name and your name and identify the fiduciary relationship with the bank. The bank can help you establish who has ownership and access to the account. VA benefit funds must be direct-deposited into the account. Do not give the account number to the veteran, and be sure to safeguard all passwords.
If you have questions about the financial activities or suspect financial exploitation of your veteran, contact the VA Fiduciary Program at the following toll free number: (888) 407-0144.
A VA fiduciary, such as a Social Security representative payee, only affects management of the benefits paid by the program. Even a power of attorney does not limit the ability of the veteran to enter into contracts. A guardianship might be necessary if the veteran has a significant loss of capacity and continues to undertake harmful financial activities. On the other hand, if you are both the VA fiduciary and a court-appointed guardian of a veteran who has been determined by a court to have a mental condition that necessitated the guardianship, any contract into which the veteran enters will be deemed invalid unless you choose to ratify it. If your veteran has entered into a contract and you object, it might be a matter for your guardianship court to resolve. You should consult your attorney.
The VA may, at its discretion, require that a fiduciary obtain a corporate surety bond to protect the interests of the beneficiary. This means the fiduciary is pledging personal assets as a type of insurance against his or her actions in performing the fiduciary duties. If the fiduciary does not meet his or her obligations, this might result in personal liability under the bond. The Veterans Service Center manager decides on a case-by-case basis whether to require a bond and for how much. If you receive a notice from the VA requiring you to obtain a bond, you may file a Notice of Disagreement in a process similar to that described above for contesting appointment of a fiduciary. Explain your reasons for disagreeing.
There is no actual form to use when filing a Notice of Disagreement; you either may prepare a letter to the VA titled (in big, bold lettering at the top) Notice of Disagreement, or you may use VA Form 21-4138 and, again, write on it that it is a Notice of Disagreement. Then explain your reasons for disagreeing. The VA is authorized, as an alternative to requiring a bond, to allow you to instead agree to set up a dedicated account into which the veteran’s benefits are paid and withdrawn only with the consent of the VA. Regardless, if you disagree with the requirement of a bond, you might want to seek out legal help from the American Bar Association's Directory of Programs.
The VA Fiduciary Program works to ensure fiduciaries are not utilizing their veterans’ funds for their own personal gain. There are certain circumstances under which a fiduciary may receive a small percentage commission from the veteran’s funds in exchange for service in a fiduciary role — this is when a professional fiduciary is appointed. It does not apply when a nonprofessional (i.e., a family member or friend) is appointed. That said, it might be possible for any fiduciary to be reimbursed as described above. Regardless of the circumstances, if you are a fiduciary, you should never take any of your veteran’s funds for your own use without first receiving permission, preferably in writing, from the fiduciary program manager at the VA. Without this permission, even if you are using the funds for what seems a totally justified purpose, it might appear you are misappropriating your veteran’s funds, for which you may be held civilly or criminally liable.
The American Bar Association and the Public Counsel Law Center are cooperating to provide caregivers a next-step legal resource to address complex caregiving situations requiring the assistance of legal counsel. In many cases, these services are provided free of charge to qualified military people, veterans and their caregivers. Refer to Lawyers for Heroes for additional details and instructions on accessing these resources.