Wednesday, August 25, 2010

Guide to Players: The U.S. Department of Veterans Affairs

I just wrote about the role of the Oregon courts in guardianships and conservatorships. I now want to write about a government agency that is completely and utterly indifferent to anything that happens in state court. It is the U.S. Department of Veterans Affairs.

The U.S. Department of Veterans affairs—the USDVA—is a  federal agency that provides medical care and a lot of other benefits for veterans. Some veterans receive disability payments due to service-related disabilities and are incapable of handling the money on their own. For these veterans the USDVA has a payee system under which it nominates a family member or a professional fiduciary to hold and administer the disability money for the veteran.

Some times the professional fiduciary selected by the USDVA will not need all of the veteran's disability money for his needs and the funds will start to accumulate in the account controlled by the fiduciary. The USDVA might then ask the fiduciary go to state court to establish a conservatorship. In other cases, family members go to state court asking for a guardianship or a conservatorship because the veteran has other funds that need to be protected, and they want the USDVA disability benefits controlled by the same conservator. In both of these situations the Oregon State court system and the USDVA collide. The results are seldom pretty.

In an earlier post I mentioned the state court judge who considers her court the last line of protection for elders and the disabled. Well the USDVA has a different view about how much protection state courts offer. To the USDVA the state court system is one in which over-paid professional fiduciaries and lawyers empty the coffers of the disabled without providing much of anything in return. Those closely aligned with the state courts don't think much of the USDVA system either. Fiduciaries used to working in the state court system think the USDVA fiduciaries are under-trained, inexperienced, and overworked. Professional fiduciaries who are well respected in the state court system may be despised by the USDVA, and fiduciaries who are believed  to walk on water by the USDVA may be looked upon as common criminals in the state court system. The key for you is to recognize the dispute without getting involved in it.

The important thing to remember is that the USDVA is allowed under federal law to ignore anything and everything that state courts do. You cannot subpoena USDVA records or personnel. State court orders can be completely ignored by the USDVA and routinely are. Therefore, if the bulk of the money going to a disabled person is USDVA money, you and your lawyer cannot go to state court to get control of it.  


I repeatedly see family members and their lawyers going into state court saying that they want honest old Uncle Henry to be conservator for disabled cousin Darrell so that Henry can control and administer the money coming every month from the USDVA. It ain't going to happen. The USDVA will decide who is in charge of that money, including accumulations of it in bank accounts, and there is nothing your local judge can do about it.

Not only will the USDVA not allow state courts to interfere with the administration of veteran's disability payments, it seldom allows its employees to appear in state court proceedings at all. Thus, if your proof that grandpa has Alzheimer's depends upon testimony from his medical providers at the USDVA hospital, you may lose your case. The only way I have gotten USDVA providers into court has been by begging and pleading with the USDVA lawyers, and when they finally agreed, the witnesses were accompanied by a USDVA lawyer to make sure he or she didn't say anything that wasn't in the agreement I made with them. That was a couple years ago, and rumor has it that since then the USDVA has become even more reticent about allowing its employees into state court.

So here are the guidelines

  1. Don't get involved in the friction that exists between the state court system and the USDVA
  2. If there is a conflict between a state court and the USDVA, the feds win—every time.
  3. Don't expect to ever win a case in state court using evidence provided by the USDVA.
  4. Money that comes from the USDVA stays in its control forever and there is nothing you can do about it.
After I explain all this to clients they ask, “I hate the person appointed by the USDVA to handle my father's disability money. What can I do?” The answer is political. Complain a lot and write your congressman. As an Oregon elder law lawyer who hangs around state courts, there is nothing I can do for you.  

Sunday, August 22, 2010

Guide to Players: The court, the judge and the staff

I have written a post of about the kinds of lawyers who practice elder law. I have written a post about the number of lawyers who might become involved in an Oregon guardianship or conservatorship. I have discussed the visitors, professional fiduciaries and other professionals who may show up in a case. It is time to talk about the government agencies.

Government has its hands all over these kinds of proceedings and each arm of the government has a different personality. The important ones are (1) the state courts, (2) the Social Security Administration, (3) the United States Department of Veteran's Affairs, and (4) the Oregon Department of Veterans Affairs. Each of these arms of government has different goals, different procedures, and different attitudes toward disabled elders. We will begin with the court system.


In any Oregon county, guardianships and conservatorships are handled in the probate department of the circuit court. In the larger counties there is one judge assigned to head the probate department. That judge may do all probate matters, or administer the probate department with the help of other judges.

The judges preside over hearings in contested cases. They make rulings on motions and sign the orders that establish a guardianship or conservatorship. It is the judge’s job to make sure the law is followed, and that every person gets a full and fair chance to be heard. There is one local Oregon judge who is fond of stating that she is the last line of protection for the aged and the disabled.

Oregon judges do a good job. Because probate judges somewhat limit their caseload to probate cases, they know the law well and, as far as I can tell, administer justice as well as fallible humans can do. Nobody is perfect and no judge I know claims to be an exception. My experience is, however, that Oregon judges are intelligent, hard working, always prepared, respectful of the litigants, and fair.

Court Staff

If one were to look through probate files at an Oregon courthouse, you might see hundreds of approvals, orders, and other documents which appear to have been examined and approved by a judge, but in fact were not. The courts see the same kind of documents so many times, that the probate staff is often charged with examining the documents, determining their compliance with law, and either approving them directly or recommending that a judge approve them. A probate staff member may either have a stamp with the judge's signature and be authorized to use it, or may bring the matter to the judge with a recommendation—at which point the judge signs off on the matter without really looking at it.

Judges work hard to treat lawyers and litigants with equal respect and courtesy. The probate staff is more willing to play favorites. Lawyers who hang around the probate court a lot and get friendly with the staff have an easier time getting documents signed than those who don't. Lawyers who have dealt honestly and straightforwardly with the court for years will have their requests granted with barely a glance, while those who have been disingenuous with the court, or rude to the court staff, will have a hard time of it.

(If you are considering hiring an Oregon elder law lawyer, ask the potential lawyer the name of the probate coordinator in the county where you are going to file. If he or she doesn't know, move on to somebody who does.)

I had an assistant once who asked me, “is probate law the same in every state?” I answered that probate law has been pretty much the same since Roman days, but we don't get paid the big bucks because we know probate law. We get the big buck because we know the probate coordinators in all the surrounding counties. People are local. So is justice.

There is no trick to dealing with judges and the probate staff. Be honest and forthcoming with the judge. Be courteous and helpful to the court staff. If you can do both those things there should be nothing you need worry about in dealing with a court.