Guardianship and conservatorship are governed by state laws and definitions of these terms vary by state. The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act, a model act developed by the Uniform Law Commission, uses the term “guardian” for a person appointed by a court to manage the care and well-being of another person, and “conservator” for a person appointed by the court to manage the property of another person. Information to help better understand when, why and how guardians and conservators may be appointed by state courts is provided on the U.S. Department of Justice’s Elder Justice website.
There are different considerations when addressing the need for a guardian or conservator for a veteran. While guardianships and conservatorships are appointed by state courts, the VA is under federal jurisdiction and may or may not honor the ruling of the state judge. The VA has its own set of guidelines and may separately appoint a fiduciary to manage a veteran’s VA financial benefits. While the VA officially prefers fiduciaries to be a family member or next-of-kin, the family member or next of kin will need to apply for a change of fiduciary if one has been established by a state judge.
The Veterans Benefits Administration operates the VA’s Fiduciary Program with the mission to protect veterans and other beneficiaries who, due to injury, disease, or age, are unable to manage their financial affairs. If Veterans Affairs after reviewing medical documentation and/or administering their own assessments determines that a veteran needs assistance, a “fiduciary” can be appointed after a proper screening to manage the property of the veteran. Veterans Affairs does not appoint a guardian to manage the care and well-being of another person.
Benefits for Veterans
Pension and other VA benefits can really make a difference in quality of life for both veterans and their caregivers. Understanding and applying for these benefits in a prepared manner can make the entire transition less stressful for all involved. We encourage advocates and fiduciaries for the veteran to review the fiduciary resources on the Veterans Benefits Administration (VBA) website to determine eligible benefits and how to apply for them.
What Are the Veteran's Rights?
The determination that a veteran or the beneficiary is unable to manage their VA benefits does not affect their non-VA finances, or their right to vote or contract.
The Veteran or beneficiary has the right to appeal the VA's findings that the veteran or beneficiary is unable to manage their VA benefits. The veteran or beneficiary also has the right to appeal VA's selection of the fiduciary. If the veteran or beneficiary disagrees with the VA on either of these matters, the Veteran or beneficiary may:
appeal to the Board of Veterans' Appeals by telling them the veteran or beneficiary disagrees with the VA decision and wants the Board to review it, or
give the VA evidence the VA does not already have that may lead the VA to change their decision.
How to Become a Fiduciary
To become a fiduciary for a family member or friend, the applicant should submit a request with the veteran’s name and VA file number, including name and contact information, to the VA regional office nearest you. To find assistance and guidance contact the local Veteran Service office, officers will assist the applicant with finding answers to questions and assist in filing and submitting claims to the VA.
The fiduciary selection is based on an assessment of the qualifications of the proposed fiduciary. When seeking a fiduciary, the following individuals may be considered:
Responsibilities to VA
The fiduciary is responsible to the veteran and oversees financial management of VA benefit payments. Fiduciaries must notify VA of any changes in the veteran’s circumstances. It is also important to respond to VA in a timely manner, meet with VA personnel when requested, and comply with Fiduciary Federal Regulation (38 CFR, Part 13 – Fiduciary Activities).
Managing Beneficiary Funds
A fiduciary must ensure all of the veteran’s bills are received and that each bill is paid on time. The fiduciary is also responsible for paying the veteran’s income taxes, when applicable, collecting any rent or unpaid debts on behalf of the veteran, and getting insurance if needed. Fiduciaries are required to keep separate financial accounts on behalf of a veteran (does not include the spouse). The law requires a fiduciary to manage and place beneficiary funds in reasonable, safe investments, protect the funds from creditors and any loss, and provide additional protection when required by VA. Fiduciaries may not use the funds for their personal expenses or comingle the veteran’s funds with their own.
A fiduciary must have a plan that considers the person’s values and preferences. The fiduciary may be required to file an annual report with the state court. The fiduciary will be required to file a report with the VA. The report should include a detailed income and expenses report. The fiduciary needs to maintain detailed documents to support income and expenses. The Consumer Financial Protection Bureau (CFPB) publishes important information to assist fiduciaries.
Common VA Forms
VA will send the forms needed; review and download the forms at http://www.va.gov/vaforms/. Some of the common forms that may need to be filed include:
What did you think of this blog post? Take our five-question satisfaction survey to let us know!