VA won't accept my guardianship documentation for my father.

Asavea asked...

I have been lovingly taking care of my father who has been bedridden for the past three years and I need some advice. I have been appointed guardian of my father and in the guardianship issued by a state judge it states that I have unlimited powers without bond and with the authority to make decisions for my Father, which include but are not limited to:

(1) Applying for and receiving money payable to the Respondent (my father) for the Respondent's support under the terms of any statutory system of benefits, including SSI benefits, Veterans Administration benefits, or insurance or any private contract, device, trust conservatorship or custodianship.

Now this is where I need help. I went to the VA to apply for and receive my father's VA pension and I showed them a hard copy of my father's guardianship and a person from the VA stated that the VA didn't have to abide by the court's order because it was issued by a state judge and that the VA is under the jurisdiction of the federal government. Is this true? Now my father's VA pension is being handled by a custodian chosen by the VA. Is there any way that I can fight this and gain control of my father's finances so I can care for him without any hassles? Thank you for your time.

Expert Answer

Rita Files, LPN, VSR, a nationally recognized expert on the elderly, has more than 30 years of experience in the health care industry, with 20 years focused on eldercare. She has developed programs for many leading providers in the senior living industry. Accredited through the V.A. in veterans' benefits, she is an advocate and powerful resource committed to educating veterans and their families about the nonservice connected pension benefit and providing them with accurate information. She is cofounder and COO of Aging with Grace.

Yes, it is true. Competency and incompetency determinations may be made either by VA rating decisions or by a court decree or both. VA is not required to recognize a court-appointed fiduciary for purposes of payment of VA benefits [38 CFR 3.850(a)] 9 See part VI, paragraph 9.08b.

From the information you provided, it sounds as though the court appointed you as your Dad's guardian after the VA rated Dad as incompetent and assigned a federal fiduciary. It may be possible to request a change of fiduciary as long as the current federal fiduciary initiates the request for change. This may be worth trying in your case. You may also want to contact an attorney who specializes in VA issues for assistance.

Generally, appointing a [fiduciary] ( takes a long time and involves an interview and mounds of paperwork. It is to the advantage of the person filing an original claim for VA Benefits for Aid & Attendance to request the appointment of him or herself as the fiduciary to help expedite the process in the case where competency may be an issue. Although the VA always makes the final decision on the appointment of a fiduciary they do favor appointing a spouse or other family member under these circumstances.