Challenging VA Fiduciary Appointments
Challenging VA Fiduciary Appointments
Certain physical and mental health conditions may leave a Veteran unable to manage their own finances. If that Veteran is receiving VA benefits, the VA may require that the Veteran have a fiduciary to manage VA funds on their behalf to ensure that the Veteran’s benefits are spent in their best interests.
Once the VA receives information that a Veteran is unable to manage their own funds, either through a VA decision or court ruling, the issue will be referred to the VA Fiduciary Hub. The Fiduciary Hub will determine a suitable fiduciary and oversee the fiduciary’s performance.
What if I don’t want a Fiduciary?
It is understandable that someone who is required to have a fiduciary may not want to have that requirement. However, a Veteran may challenge the requirement to have a fiduciary by submitting evidence that a doctor has determined the Veteran to be competent to handle their own funds. If the Veteran has been required to have a fiduciary because a court has found the Veteran unable to manage their funds, then the Veteran will need to get a court order showing that the Veteran can now manage their own funds.
Can I Pick my Own Fiduciary?
The VA has an order of preference in who it will appoint as a fiduciary. At the top of the list is someone selected by the Veteran. So, while the Veteran may not be able to directly choose who serves as their fiduciary, their wish does carry weight.
If the Veteran does not or cannot show that they want a specific person to be the fiduciary, regulations look to the spouse, a relative caring for the Veteran, a friend or other relative who is willing to serve as fiduciary without a fee, an institution where the Veteran receives care, a court-appointed individual, or someone who demands a fee to serve as fiduciary, in that order. Once a willing fiduciary has been found, the VA Fiduciary Hub will investigate that person’s background to ensure they can serve as a fiduciary. In many cases, the fiduciary must get a surety bond before being appointed by the VA.
What if my Fiduciary isn’t Doing their Job?
A fiduciary can be removed by the VA Fiduciary Hub if they receive credible information that the fiduciary is misusing VA funds, not performing their duty in accordance with regulations, or if the fiduciary’s required annual reporting is 120 days late. In this situation, the VA Fiduciary Hub would likely remove the fiduciary and appoint a temporary fiduciary until more permanent arrangements can be made.
A Veteran can also make a reasonable request to have a successor fiduciary appointed to replace the current one if:
- The current fiduciary is receiving a fee and the Veteran identifies a volunteer who is higher in the order of precedence
- The Veteran asks for removal of the fiduciary in lieu of supervised direct payments
- The fiduciary is not performing in the Veteran’s best interests or the fiduciary has an unresolvable conflict with the Veteran.
The appointment of a fiduciary can a difficult and complex issue. However, it is important to make sure you have a responsible, trustworthy individual acting as your fiduciary.
Josef Loukota is a VA disability attorney that fights to help fellow Veterans receive the disability benefits they earned. Joe served for six years in the U.S. Navy as an aircraft safety equipment mechanic and shop supervisor. He earned the Enlisted Aviation Warfare Specialist insignia, two Navy Achievement Medals, and the Navy Good Conduct Medal. Prior to joining Berry Law, Joe worked with Legal Aid of Nebraska as part of a Veteran-to-farmer outreach program. Joe also worked at the University of Nebraska at Omaha Military and Veteran Services Office as part of a team helping Veterans access their G.I. Bill education benefits.