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.  

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