Overview
In This Section |
This section contains the following topics:
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1. General Authorization Issues in Incompetency Cases
Introduction |
This topic contains information on general authorization issues in incompetency cases, including
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Change Date |
May 24, 2018 |
III.v.9.B.1.a. Indicating Incompetency When Scheduling a Physical Examination |
When requesting an examination of an incompetent Veteran,
Reference: For information on inputting examination requests, see M21-1, Part III, Subpart iv, 3.A.9 and 10.
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III.v.9.B.1.b. Actions to Take When an Incompetent Veteran Fails to Report for a Routine Future Examination |
If an incompetent Veteran fails to report for a routine future examination,
Reference: For more information on processing a Veteran’s failure to report for an examination, see M21-1, Part III, Subpart iv, 8.E.1. |
III.v.9.B.1.c.Admission of an Incompetent Veteran to an Institution for Medical Care |
For information on handling cases in which an incompetent Veteran is admitted for medical care to a Department of Veteran Affairs (VA) or non-VA institution, seeM21-1, Part III, Subpart v, 6.E.
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III.v.9.B.1.d. Claims From Claimants Whom VA Has Determined Are Incompetent |
VA must process claims it receives from a claimant whom VA has determined is incompetent, even if VA has appointed the claimant a fiduciary.
A VA determination of incompetency under 38 CFR 3.353 constitutes a decision regarding the claimant’s ability to manage his/her own affairs, including disbursement of funds. It does not preclude such a claimant from prosecuting a claim for benefits.
Reference: For more information on the process for determining whether a beneficiary is competent, see M21-1, Part III, Subpart iv, 8.A.3.
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2. Processing Incompetency Determinations and Authorizing Awards When a Beneficiary’s Competency Is at Issue
Introduction |
This topic contains information on processing incompetency determinations and authorizing awards when a beneficiary’s competency is at issue, including
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Change Date |
May 24, 2018 |
III.v.9.B.2.b. Processing Medical Evidence of Incompetency That Does Not Involve a Judicial Determination |
Follow the instructions in the table below after receiving medical evidence that
Reference: For more information on handling requests for competency determinations without medical or a judicial determination regarding a beneficiary’s competency, see M21-1, Part III, Subpart iv, 8.A.1.f.
Important: Process an award or award adjustment according to the instructions inM21-1, Part III, Subpart v, 9.B.2.c if, at any point during the process described in the table above, a beneficiary becomes entitled to
Note: If, during the due process period (the 60-day period that follows the date of the notice of the proposed rating of incompetency), VA receives
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III.v.9.B.2.c. Claimants Who Become Entitled to Benefits Before the Rating Activity Makes a Final Determination Regarding Competency |
If, at any point during the process described in M21-1, Part III, Subpart v, 9.B.2.b, the rating activity determines a claimant is entitled to an original award of benefits, a reinstatement of benefits, or increased benefits, generate an award or process an award adjustment (whichever applies) that is effective the current month, withoutwaiting for resolution of the competency issue.
Exception: Under certain circumstances, which should be rare, not taking the action described in the preceding paragraph might be in the beneficiary’s best interest. If, for example, the evidence of record shows the beneficiary has a history of giving away all his/her income or spending it on frivolous activities on the same day he/she receives it, it may be in the beneficiary’s best interest to withhold benefits until
Important: In all cases, withhold all retroactive benefits due the beneficiary until the rating activity makes a final decision regarding the beneficiary’s competency. If the rating activity ultimately decides the beneficiary is
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III.v.9.B.2.d.Actions the Authorization Activity Takes Following Receipt of a Recommendation for Payment From a Fiduciary Hub |
When a fiduciary hub makes a recommendation for payment, its own authorization activity typically processes the recommendation. When the fiduciary hub’s authorization activity is unable to process such a recommendation, the fiduciary hub refers the recommendation to a regional office (RO) for processing.
The table below describes the actions ROs must take after receiving a recommendation for payment from a fiduciary hub.
Note: If the award of the beneficiary referenced in the table above
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III.v.9.B.2.f. Processing a Court Decree of Incompetency or Court Appointment of a Fiduciary by Reason of Incompetency |
If VA receives a court decree of incompetency or a court appointment of a fiduciary by reason of a beneficiary’s incompetency, it is unnecessary to
Important:
References: For more information about the
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III.v.9.B.2.g. Processing a Judicial Determination of Incompetency Regarding a Veteran |
Judicial findings of a court with regard to the competency of a Veteran are notbinding on the rating activity.
Follow the steps in the table below after receiving a judicial determination of incompetency regarding a Veteran.
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III.v.9.B.2.i. Processing a Evidence That a Child Beneficiary Is Permanently Incapable of Self-Support |
Following receipt of evidence indicating a child beneficiary is permanently incapable of self-support, refer the case to the rating activity for a decision as to whether or not the child
Note: A child may be unable to support him/herself and still be considered competent to handle his/her financial affairs.
References: For more information on
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III.v.9.B.2.j. Authorizing an Award for a Beneficiary Found Competent by Court Decree |
If a beneficiary previously held incompetent
Note: If the beneficiary is a child who is incapable of self-support by reason of mental defect, the rating activity must make a new determination as to whether the child remains entitled to VA benefits. Do not defer award action pending this referral to the rating activity.
Reference: For more information on awards to incompetent Veterans who are institutionalized for medical care, see M21-1, Part III, Subpart v, 6.E.1.
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3. Due Process Requirements for Incompetency Determinations
Change Date |
February 19, 2019 |
III.v.9.B.3.a. Elements of a Notice of a Proposed Rating of Incompetency |
Notice of a proposed rating of incompetency must include
Note: If a beneficiary requests a hearing at any time before VA makes a final decision regarding the beneficiary’s competency, VA will wait to make a final decision until after it holds the hearing.
References:
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III.v.9.B.3.b. Text to Include in a Notice of a Proposed Rating of Incompetency |
Include the text in the paragraphs below when preparing a notice of a proposed rating of incompetency for a beneficiary who is already receiving VA benefits.
Important: If the beneficiary is not receiving benefits, based on the Exceptioncited in M21-1, Part III, Subpart v, 9.B.2.c, remove the two paragraphs that discuss the time limit for requesting a hearing.
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III.v.9.B.3.c. Notifying an Adult Beneficiary Who Is in the Care of a Medical Center or Institution |
Use the table below to determine to whom to send the notice of a proposed rating of incompetency if the beneficiary is an adult in the care of a medical center or institution, per 38 CFR 3.852.
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III.v.9.B.3.d. Notifying a Beneficiary Who Is a Minor |
If VA is making payments on behalf of a minor child, and a decision regarding the child’s competency is needed when the child reaches age 18, send notice of a proposed rating of incompetency to
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III.v.9.B.3.f. Documenting Compliance With the Requirement for Oral Notification |
Document compliance with the requirement to provide the oral notification referenced in M21-1, Part III, Subpart v, 9.B.3.e on VA Form 27-0820, Report of General Information.
If initial and follow-up attempts to contact the beneficiary by telephone areunsuccessful, document the actions taken on VA Form 27-0820.
Notes:
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III.v.9.B.3.g. Handling Evidence VA Receives During the Due Process Period |
The table below describes the process for handling evidence regarding a beneficiary’s competency that VA receives within 60 days of the date of the notice referenced in M21-1, Part III, Subpart v, 9.B.3.b.
Exception: Follow the process outlined in M21-1, Part III, Subpart v, 9.B.3.i, if VA receives evidence regarding a beneficiary’s competency in connection with a hearing the beneficiary requested.
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III.v.9.B.3.h. Responding to a Beneficiary’s Request for a Hearing |
If a beneficiary requests a personal hearing, advise the beneficiary that
Note: If the beneficiary expresses a desire for representation but has not yet designated a representative, help the beneficiary designate a representative by furnishing him/her the appropriate form from among those listed in M21-1, Part I, 3.A.2.c.
References: For more information on
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III.v.9.B.3.i. Processing a Beneficiary’s Request for a Hearing |
The table below describes the process for handling a beneficiary’s request for a hearing that VA receives within 60 days of the date of the notice referenced in M21-1, Part III, Subpart v, 9.B.3.b.
Note: The ROJ is responsible for processing to completion (Stages 2 through 4 in the table below) a case in which a beneficiary requests a hearing in response to notice of a proposed rating of incompetency.
References: For more information on
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III.v.9.B.3.j. Conducting a Hearing Prior to a Final Determination |
Designated hearing officials conduct hearings in accordance with the instructions in M21-1, Part I, 4.4.
Due to the nature of the hearings referenced in this section, hearing officials must be flexible in allowing a beneficiary’s next of kin (or any other person of the beneficiary’s choosing) to participate in the hearing on the beneficiary’s behalf or to assist the beneficiary during the hearing.
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III.v.9.B.3.k. Processing a Waiver of Due Process Concerning a Proposed Rating of Incompetency |
If VA receives a waiver of due process concerning a proposed rating of incompetency,
Note: The fiduciary hub will maintain jurisdiction of the pending EP 590.
Reference: For more information on the jurisdiction of individual fiduciary hubs, see M21-1, Part III, Subpart v, 9.A.1.d.
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III.v.9.B.3.m.Processing a Legacy NOD That VA Receives After Issuing Notice of a Final Rating of Incompetency |
The ROJ handles all legacy appeals of incompetency determinations.
If VA receives a legacy NOD after issuing notice of a final rating of incompetency, the ROJ must
Important: When preparing the SOC, carefully consider whether the inclusion of certain information could be detrimental to the beneficiary’s state of mind. A decision to exclude information on this basis must be supported by a physician’s opinion and advice concerning the appropriate way to communicate the information to the beneficiary.
Note: Fiduciary hubs are responsible for handling all legacy appeals, supplemental claims, and higher-level reviews regarding the selection of a fiduciary.
References: For more information on
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4. Information About the Brady Act
Change Date |
Feburary 19, 2019 |
III.v.9.B.4.b. Notifying Affected Beneficiaries |
Affected beneficiaries must be notified of the effects of the Brady Act in the
The following letter types and templates contain text that adequately explains the prohibitions the Brady Act imposes:
In the event a claims processor uses an alternative correspondence template to prepare notice of a proposed rating of incompetency, he/she must include in the notice the following text:
The Brady Handgun Violence Prevention Act prohibits you from purchasing, possessing, receiving or transporting a firearm or ammunition based upon our determination that you are incompetent to handle your VA funds. You may be fined and/or imprisoned if you knowingly violate this law.
You may apply to VA for relief of firearms prohibitions imposed by the law by submitting your request to the address at the top of this letter on the enclosed VA Form 21-4138, Statement in Support of Claim. VA will determine whether such relief is warranted.
Reference: To view additional text that must be included in a notice of a proposed rating of incompetency, see M21-1, Part III, Subpart v, 9.B.3.b.
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III.v.9.B.4.c. Relief From the Brady Act Requirements |
The NICS Improvement Amendments Act of 2007 (NIAA) contains an amendment to the Brady Act that obligates VA to provide incompetent beneficiaries the opportunity to request relief from the reporting requirements the Brady Act imposes. The NIAA places the responsibility for administering the relief program on the agency that provided NICS with the name of the individual who is requesting relief.
Because relief from the reporting requirements of the Brady Act is not a “benefit” under Title 38, principles common to VA’s adjudication process, such as “benefit of the doubt” and “duty to assist” (as demonstrated in ordering examinations or securing private medical records) do not apply. The burden of proof for these requests resides with the beneficiary, and failure to meet that burden is sufficient reason for denying the request.
Notes:
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III.v.9.B.4.d. Initial Steps to Take Following Receipt of a Request for Relief |
Follow the steps described in the table below following receipt of a beneficiary’s request for relief from the requirements of the Brady Act.
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III.v.9.B.4.e. Required Paragraphs for the NICS Relief Development Letter |
If development action is necessary under M21-1, Part III, Subpart v, 9.B.4.d to decide a request for relief from the Brady Act requirements, include the following paragraphs in a letter to the beneficiary.
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III.v.9.B.4.f. Consent Form That Must Accompany the NICS Relief Development Letter |
Attach the consent form shown below to the NICS relief development letter referenced in M21-1, Part III, Subpart v, 9.B.4.e.
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III.v.9.B.4.g. General Information About Decisions to Grant or Deny a Request for Relief |
This block contains general information about decisions to grant or deny a request for relief from the requirements of the Brady Act.
Reference: For more information on appellate rights for denials of relief requests, see 18 U.S.C. 925(c).
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III.v.9.B.4.i. Circumstances Under Which Claims Processors Must Deny a Request for Relief |
Claims processors must deny a request for relief from the requirements of the Brady Act if the evidence of record shows the beneficiary would be a danger to him/herself or others if VA granted the request.
The evidentiary standard for denying a request for relief is “clear and convincing.” This standard is met if any of the following is reflected in the beneficiary’s record:
Note: A “violent offense” includes, but is not limited to, menacing, stalking, assault, or battery.
Reference: For more information on the clear and convincing evidentiary standard, see M21-1, Part III, Subpart iv, 5.A.1.i.
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III.v.9.B.4.j. Process for Considering a Grant of Relief |
If clear and convincing evidence to justify denying a request for relief of the requirements of the Brady Act (as discussed in M21-1, Part III, Subpart v, 9.B.4.i) does not exist, claims processors must consider granting the request by following the process described in the table below.
Important: The evidentiary standard for granting relief is also “clear and convincing.” To meet this standard, the evidence of record must affirmatively, substantially, and specifically show
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III.v.9.B.4.k. Actions to Take After Making a Decision on a Request for Relief |
After making an administrative decision on a request for relief from the requirements of the Brady Act, claims processors must
Note: If VA is using a paper claims folder to process the request for relief, file down the documentation referenced in the preceding paragraph on the right flap of the folder.
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5. SDP
Introduction |
This topic contains information on SDP, including
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Change Date |
May 24, 2018 |
III.v.9.B.5.a. Authorization of SDP by a Fiduciary Hub |
Under 38 CFR 13.56, a fiduciary hub may authorize SDP to
If the fiduciary hub concludes that such method of payment is consistent with the beneficiary’s capacity and affords a reasonable protection of the beneficiary’s interests, the fiduciary hub indicates its authorization of SDP on VA Form 21-555.
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III.v.9.B.5.b. Confirmation of SDP Status Following a Loss of Entitlement |
If an incompetent beneficiary loses entitlement to benefits that VA had been paying directly to him/her based on a fiduciary hub’s authorization of SDP, and VA later restores entitlement, do not resume the payment of benefits directly to the beneficiary without concurrence from a fiduciary hub.
If necessary, request a current VA Form 21-555 by:
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III.v.9.B.5.c. Fiduciary Hub Responsibilities Following the Authorization of SDP |
After a fiduciary hub authorizes SDP, it is responsible for
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III.v.9.B.5.d. Processing and Controlling an SDP Award |
The table below contains instructions for processing and controlling an SDP award.
Reference: For more information about establishing diaries, see the
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6. Processing Rating Decisions That Conclude a Beneficiary VA Previously Rated Incompetent Is Now Competent
Change Date
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February 19, 2019
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III.v.9.B.6.a. Processing Rating Decisions That Conclude a Beneficiary VA Previously Rated Incompetent Is Now Competent |
The table below contains instructions for processing rating decisions that conclude a beneficiary VA previously rated incompetent is now competent.
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5-23-17_Key-Changes_M21-1III_v_9_SecB.docx | May 16, 2019 | 117 KB |
5-10-19_Key-Changes_M21-1III_v_9_SecB.docx | May 16, 2019 | 98 KB |
2-19-19_Key-Changes_M21-1III_v_9_SecB.docx | May 16, 2019 | 95 KB |
Historical_M21-1III_v_9_SecB_8-30-18.docx | May 16, 2019 | 132 KB |
Historical_M21-1III_v_9_SecB_7-11-15.docx | May 16, 2019 | 161 KB |
Historical_M21-1III_v_9_SecB_5-24-18.docx | May 16, 2019 | 132 KB |
Transmittal-Sheet-pt03_sp05_TS_11-15-10.docx | May 16, 2019 | 39 KB |
Transmittal-Sheet-M21-1MRIII_v_9_SecB_TS.docx | May 16, 2019 | 41 KB |
Change-December-19-2014-Transmittal-Sheet-M21-1MRIII_V_9_SecB_TS.docx | May 16, 2019 | 37 KB |
6-30-16_Key-Changes_M21-1_III_v_9_SecB.docx | May 16, 2019 | 131 KB |
in Chapter 9 Authorizing Awards for Incompetency and Fiduciary Cases, Part III General Claims Process, Subpart v General Authorization Issues and Claimant Notification
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