Overview
In This Section |
This section contains the following topics:
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1. Guidelines for Evaluating Competency
Introduction |
This topic contains information on the guidelines for evaluating competency, including
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Change Date |
February 19, 2019
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III.iv.8.A.1.a. Jurisdiction for Competency Determinations |
Jurisdiction on competency determinations for Department of Veterans Affairs (VA) purposes is dependent on the stage of the process the decision is in.
Use the table below to determine jurisdiction of the competency
determination.
Note: Proposed and final competency determinations are not claims for benefits, although the competency issue may arise in association with a claim for benefits. A competency request, accompanied by medical or judicial evidence, does not require a prescribed form submission.
References: For more information on
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III.iv.8.A.1.c. Presuming Competency |
In the absence of clear and convincing evidence to the contrary, presume that a person is competent.
References: For more information on
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III.iv.8.A.1.d. Making a Finding of Incompetency |
A finding of incompetency cannot be made without a definite expression by a responsible medical authority unless the medical evidence of record is
Note: If competency of a VA beneficiary is raised without relevant medical evidence or statement from a responsible medical authority, development must be undertaken for medical evidence before the case can be forwarded to the rating activity.
References: For more information on
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III.iv.8.A.1.e. Considering the VSCM’s Opinion Regarding Competency |
After development of information with regard to social, economic, and industrial adjustment, the Veterans Service Center Manager (VSCM) may be of the opinion that a beneficiary rated, or proposed to be rated, incompetent is actually capable of handling, without limitation, the funds payable. In this case, he/she will refer the evidence and finding to the rating activity.
The rating activity should consider the VSCM’s finding as new evidence and, after any necessary additional development, prepare a rating based on the evidence of record.
Reference: For more information on evaluating evidence of incompetency, seeM21-1, Part III, Subpart iv, 8.A.2.
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III.iv.8.A.1.f. Handling Requests for Incompetency Determinations Without Medical or Judicial Evidence |
Refer to the table below for proper procedures for handling requests for a finding of incompetency from a Veteran or beneficiary or from a third-party source.
Reference: For more information on field examinations and other evidence received pertaining to restoration of competency status, see M21-1, Part III, Subpart iv, 8.A.4.
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2. Considering Competency While Evaluating Evidence
Introduction |
This topic contains information about considering competency while evaluating the evidence, including
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Change Date |
February 19, 2019
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III.iv.8.A.2.a. Considering Whether to Address
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If the claimant is a Veteran, address competency in a decision whenever
Address competency as a separate issue in the rating decision when
Use the table below for guidance on what action, if any, to take within a rating decision on the matter of competency.
Important:
There is no evidence of record that shows that you are unable to manage your financial affairs. (38 CFR 3.353) References: For more information on
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III.iv.8.A.2.b. Considering the Competency of a Child Permanently Incapable of Self-Support |
If the claimant is a child over the age of 18 and permanently incapable of self-support, the rating activity must resolve the issue of competency for the child because entitlement depends upon permanent incapacity for self-support due to physical or mental disability.
If incapacity is due to mental disability
Note: Since the incompetency procedures referred to in M21-1, Part III, Subpart v, 9.B.3 are for payment purposes, do not apply those procedures except in cases where the child would receive direct payment in his/her own right.
References: For more information on
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III.iv.8.A.2.c. Considering the Competency of Other Beneficiaries |
If there is evidence of incompetency and the claimant is another beneficiary, such as a surviving spouse, parent, or VA insurance beneficiary
References: For more information on
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3. Process for Making Competency Determinations
Introduction |
This topic contains information about the process for making competency determinations, including
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Change Date |
May 24, 2018
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III.iv.8.A.3.a. Making Initial Competency Determinations Based on Medical Evidence |
The RO is responsible for all initial competency determinations based on medical evidence. The table below describes the actions involved in making initial competency determinations based on receipt of medical evidence.
References: For more information on
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III.iv.8.A.3.b. Jurisdiction of a Final Competency Determination |
Use the table below to determine jurisdiction of the final competency determination.
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4. Changing Competency Status
Introduction |
This topic contains information about changing competency status, including
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Change Date |
May 24, 2018
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III.iv.8.A.4.a. Proposing Incompetency |
Issue a rating proposing a change in competency status if the evidence of record will result in a change in competency status from competent to incompetent.
This proposal may be included in a rating addressing other issues, such as evaluation of a mental disorder.
Reference: For more information on procedures to follow upon receipt of evidence of incompetency, see M21-1, Part III, Subpart iv, 8.A.1.
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III.iv.8.A.4.b. Determining Restored Competency |
The determination with respect to restoration of competency rests solely with the rating activity and not with a medical official. 38 CFR 3.353(c) mandates a presumption in favor of competency when reasonable doubt arises regarding a beneficiary’s mental capacity to manage his or her own affairs. Competency may be restored based upon credible medical or other evidence.
In any case in which the beneficiary has previously been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a
Reference: For more information on the authority of the rating activity in determinations regarding competency, see Sims v. Nicholson, 19 Vet.App. 453 (2006).
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III.iv.8.A.4.d. Evidence Required to Restore Competency |
Any evidence showing the beneficiary may be capable of handling funds should be referred to the rating activity. The rating activity will consider this evidence, along with all other evidence of record, to determine whether competency should be restored.
Do not routinely request an examination of the beneficiary when evidence indicates that competency has been regained. Under 38 CFR 3.353(b)(3), a beneficiary is not required to undergo a psychiatric examination and/or field examination before his/her competency may be restored. However, a current psychiatric examination and/or field examination may be requested if needed to properly evaluate the beneficiary’s mental capacity to handle his/her own funds.
Note: When recommendations from a field examiner suggest restoration of competency is warranted, and evidence is otherwise consistent with or does not conflict with the recommendation, no additional evidence is required to restore competency.
References: For more information on
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5. Evaluating Competency in Special Circumstances
Introduction |
This topic contains information about evaluating competency in special circumstances, including
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Change Date |
May 24, 2018
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III.iv.8.A.5.b. Determining When a Competency Rating Is Needed After a Decree by a Court |
Use the table below to decide how to proceed with a competency rating of payees who have been found incompetent by a court decree.
References: For more information on
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III.iv.8.A.5.c. Procedures for Payee Found Incompetent by Court Decree or Court Appointment of a Fiduciary by Reason of Incompetency |
The table below describes the appropriate action to take for a payee when an RO receives a court decree of incompetency or a court appointment of a fiduciary by reason of incompetency.
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III.iv.8.A.5.d. Procedures Following Receipt of Court Decree Restoring Competency |
Use the table below to determine the appropriate action after receipt of a court decree restoring competency of a Veteran or other payee previously found to be incompetent.
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III.iv.8.A.5.e. Authorization Actions When Reinstating Benefits for a Veteran Previously Rated Incompetent |
Use the table below to determine the appropriate actions following receipt of a request to reinstate benefits for a Veteran previously-rated incompetent, whose benefits were terminated due to
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III.iv.8.A.5.f. Rating Actions When Reinstating Benefits for a Veteran Previously Rated Incompetent |
Use the table below to determine the appropriate actions after a claims folder is referred to the rating activity for review due to the receipt of new medical or other evidence from a Veteran previously-rated incompetent who is now requesting reinstatement of benefits.
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III.iv.8.A.5.g. Referral to Fiduciary Hub After Reinstating Benefits for a Veteran With a Continued Finding of Incompetency |
When an incompetent Veteran’s benefits are reinstated with a continued finding of incompetency, as directed in M21-1 Part III, Subpart iv, 8.A.5.d and e, notify the fiduciary hub of jurisdiction via the appropriate fiduciary hub mailbox as shown by selecting the appropriate fiduciary hub location from the list below.
Note: The fiduciary hub will consider whether the prior failure to submit necessary information for continuance of benefits indicates the need for appointment of a different fiduciary.
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2-19-19_Key-Changes_M21-1III_iv_8_SecA.docx | May 15, 2019 | 61 KB |
Change-August-27-2015-Transmittal-Sheet-M21-1III_iv_8_SecA_TS.docx | May 15, 2019 | 39 KB |
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