How long does it take to get a guardianship or conservatorship in Oregon?

I often advise clients not to seek a guardianship or conservatorship until it becomes absolutely necessary. The court process is expensive and cumbersome, so I tell clients that going to court should be the last resort. The result of this advice is that when families finally decide to seek a guardianship they want it quickly. Their first question is how long will it take.

In the courthouse where I practice, guardianships and conservatorships are called protective proceedings. They are called this because they protect vulnerable elders. There are three different procedures for getting protection from the court: the standard, the speedy, and the super speedy. The faster I have to get the protection, the more difficult and expensive the legal procedure is. Most clients opt for the standard and that is what I discuss in this article

The Time Estimates for a Standard Guardianship or Conservatorship

    The first step in obtaining a guardianship or conservatorship is finding and selecting an Oregon elder law attorney.  If you work at it, this should take about four days. Once you have selected an attorney you will need to provide him or her with a lot of information about the elder and his family. It will take you three days to get this information together--usually by filling out a form provided by the lawyer. While you are getting this information, the lawyer has work to do. If you are asking to be appointed a conservator, your lawyer will check and see if the bonding companies will bond you. If you asking that a professional guardian or conservator be appointed, the lawyer will spend time convincing one of them to take your case. All of this should get done in the first week, at which time the lawyer will be ready to write the petition that will be submitted to the court.

    The lawyer might take three business days to write the petition. Then you come in to read it and make corrections. The next day the lawyer can file the case. You will have a case number and are approximately eleven days into the process.

Within a day or so of filing the case the lawyer will have a process server personally hand the disabled elder a copy of the petition and a thick sheaf of documents advising the elder of his right to object and his right to be represented by an attorney. At the same time the lawyer will mail a copy of the petition to the adult children of the elder, the State of Oregon and a few other people. Those people also have the right to object. If anyone objects, all bets are off, the case will be significantly delayed, and the case will have gone beyond what I can write about in this column.

Once the elder is personally served with the petition and the notices have been mailed, you and your lawyer wait for fifteen days for somebody to object. If it is a guardianship the fifteen days is used to obtain and review the report from the court visitor. If the court visitor agrees that the elder needs protection you are on your way. If the court visitor has a problem with what you want to do, there will be a delay while the court looks at the matter more closely. If it is a conservatorship, the attorney will secure the bond. If you are seeking both a guardianship and a conservatorship, you will have to deal with both a visitors report and a bond.  On the sixteenth day after service of the petition on the elder, the attorney may apply to the court for a judgment. We are now at day twenty-seven.

The speed at which a court processes a judgment and issues letters of guardianship or conservatorship varies by county. I will estimate a week as the normal time it takes for the court to do its part. We are now at day thirty-four. It has take slightly more than a month to go from deciding that a protective proceeding is necessary to having a court order in hand.

The schedule I describe is optimal and depends upon both the lawyer and the client attending to their duties promptly. If the elder or any other interested person files an objection the matter will be delayed as the matter is set for hearing or mediation.

Sometimes thirty-four days is too long. In that case the elder law lawyer uses an expedited process to obtain a temporary protective order. A temporary protective order lasts only thirty days but it offers protection for the elder while the lawyer takes the steps to obtain a permanent one the regular way. My next post will examine how long it takes to have a guardian or conservator appointed in an emergency.

More than Oregon Elder Law: An Elders' Pledge

When I was in gerontology school a long time ago, instead of paying attention in class one day, I wrote something I called "The Older Americans' Pledge." Recently a group called the Syracuse Cultural Workers adapted the pledge to apply to all elders, whether American or not, and paired it with the wonderful artwork of Diedre Sherer. The group then produced, posters, note paper, and bookmarks using the pledge. One version of the poster is below:

 

The poster and other products can be purchased here. (I do not receive anything on sales other than the pride of being associated with such a great artist.)

Oregon Elder Law - The role of family gifts in estate administration.

     In my last column I talked about gifts between family members during the time that an elder is depending on family for support and long term care. Today I want to talk about gifts and how they affect the wills, trusts and the administration of estates.

Gifts that undo an estate plan.

     Your estate is the money and property you have on the date of your death. The money goes first to pay your bills and then to the people named in your will or trust. If you are old and sick and rich you may find long-estranged children returning to the fold and new friends willing to share your last days with you. Sometimes they are there out of love. Sometimes they want your money.

     The most common method of defeating the distribution plan contained in a will or a trust is to convince an elder to give away all of her money before she dies. As I wrote in my last post, a gift is complete when the property is handed over, and thereafter the recipient can do whatever she wants with the property given. Most wills give a parent's estate to the children in equal shares. Sometimes there is a child interested in getting more than an equal share. The best way for that child to turn that obnoxious will or trust into scrap paper is to get dad to sign over all his property while he is still alive. If he has nothing left at his death, the will means nothing.

     The traffic in my office, suggests that the last years of a wealthy elder's life is a never-ending parade of relatives jamming papers in front of the elder for signature. Most of these papers transfer money or property from the elder to the person who came up with the paper. They have all sorts of reasons why the elder should sign and why it needs to be done right now. “I need to be on your account so I can pay your medical expenses.” “If you don't put me on the house, you will go to probate and the government will get all your money.” “If you don't give me this money now you will have to pay taxes on it.” The creativity of these folks is quite astounding, but none of the schemes benefit anybody but the person who receives the property. No matter how sick you are, there is no good reason for giving away your money because a relative or your hairdresser thinks it's a good idea. If these people really cared about you they would be offering to pay the cost of a visit to a competent estate planning lawyer.

     Deathbed gifts often lead to litigation in which the people named in the will or trust attempt to recover what was given away. These cases employ a lot of probate lawyers. The cases are nasty and expensive, and no matter who wins, the lawyers get a big chunk of the estate.

Gifts and Sibling Tension.

Gifts that Complicate Estate Administration

     Let's assume you died without giving away everything you own. Gifts are still going to play a role what happens.

     Whether you like it or not, your children are going to treat the administration of your estate—the distribution of your money and belongings—as some sort of final reckoning of everything you did for them and everything they did for you. Death is time to balance the books and settle accounts for everything that happened while you were alive.

     A lot of families who end up in my office have one member who needed more help through life than did the others. Sometimes the help was necessary because of an obvious physical or mental illness. The healthy siblings in these cases are usually understanding. Other times the disability is addiction, irresponsibility or congenital laziness, and the children who did not get the extra help are not inclined to be as forgiving. They see the recipient of lifetime gifts as having a balance on the books that, upon death, needs to be taken into account when it comes to passing out the inheritance. The recipient of the parental largess, who is often still broke and in need, doesn't see it that way.

     Similarly, the child who has selflessly given up time and career opportunities to provide care for a parent, sees the administration of the estate as a time to be financially recognized for the sacrifice he made while the other children pursued their personal aims. Generous and giving people often want their self-sacrifice to be rewarded and there is no better way to do that than when dividing father's estate.

     Wills and trusts, however, seldom take these lifetime gifts into account. The estate is divided equally between the children. The child who has lived off his parents for decades gets no deduction for the gifts he received, and the one who toiled to provide care gets no credit for his sacrifice.

Thwarted in their desire for a final account that acknowledges the gifts given by the elder and the gifts given by the children, the children focus their frustration on what seems to outsiders as something arbitrary. Sometimes it is a bank account. Sometimes it is a lamp. Whatever it is, it is a symbol for their complaints against each other and their resentments against the dead elder. 

 

     As I wrote in my first post on gifts, mutual gifting is the way we take care of the those family members who need help. Sometimes it is the older members helping out the younger. Sometimes it is the younger members helping the elders. But don't be fooled. Gifts have long and lasting effects. No matter what your age, give with care and receive with caution. A gift is without expectation of repayment. It is not, however, without consequences.

      There is an adage that the question is not whether to give, but when and how. Put as much thought into your gifts as you do your estate plan. Your will or trust, your beneficiary designations, and the gifts you give should form a coherent whole. Each piece should compliment the others and advance the goal of leaving everyone in the family better off. You cannot eliminate the possibility of your funeral being the scene of rancor and litigation, but by thinking carefully about the gifts you give and receive you can significantly reduce the chances.

The role of family gifts in providing elder care.

Most elder care is provided by families. Families use the same methods for providing care for elders that they use to provide care for any other family member in need. Whether it is a child with a disability, a brother with an addiction, or an elder with declining cognitive skills, families employ an informal system based upon gifts. Gifts, however, are not as simple as they might seem.

Family members whose earning ability is robust give to those who have less. The recipients may be young adults who are just getting started in life, middle age siblings who have failed to thrive economically, or elders who need help managing their later years. These exchanges can continue for a lifetime. I am sixty-one and, although I do not lack for much of anything, my parents still send me money.

The gift from children to elderly parents usually comes in the form of care. Our children take over the driving, the money management, and sometimes provide hands-on help with the activities of daily living. Within the family system the gift of care repays the gifts the elders have made to the children. This system of reciprocal gifts becomes an integral part of the way family members interact with and support each other. 

Care of family members by the informal exchange of gifts drives lawyers crazy. Only recently have I finally surrendered and accepted the fact that no matter what the law says this system of reciprocal giving will always be the primary way in which families manage care for each other.

In law school lawyers study gifts only briefly. We know that for a gift to be complete there must be intent to give and delivery of the property being given. The transaction is then complete. The recipient has full ownership of the property given, and the giver has no more claim on it. Gifts cannot have strings. If they do, they are not gifts. They may be contracts, or trusts or God knows what, but they are not gifts.

Gifts are not taxable to the recipient. If you receive money as a gift, it is not income. Thus, you pay no income tax on it. If you are very wealthy there may be a tax on the giver, but for anyone likely to die with less than five million dollars that is not an issue.

(If you are rich enough to pay taxes on the gifts you give, you can easily afford a good tax lawyer for individual advice. You should skip this article and hire one.)

The problem with the informal exchange of gifts for elder care is that the government hates it. Most people understand that you cannot give away all your money and then expect the government to pay for your long term care. People intuitively understand and agree with that concept even if they don't know the details of the rule.

(The rule in a nutshell is that large gifts made within five years of a Medicaid application will result in a penalty period in which the giver is disqualified from receiving long term care coverage.)

The Medicaid rule, designed to ward off the perceived threat of millionaires on Medicaid, fails to acknowledge the real life role of gifts in family dynamics. The hard work of elder care is a gift of services from the child to the parent, services that the elder would otherwise have to pay for. The gift of money to the child is reciprocal, an act of gratitude for the care given. Neither gift has formal strings attached, but one leads naturally to the other.

The other legal presumption that comes into play in elder care is the rule that care provided for a family member is a gift unless you can prove otherwise. You overcome that presumption by having a care contract—a written agreement in which the elder pays a family member for care. To be valid, the contract has to be signed before the care is given. I am forever encouraging elders and their family care givers to turn the informal exchange of gifts into a contract. With a contract money flows from the elder to the family care giver without the Medicaid penalty. Most families, however want nothing to do with my care contracts. No financial or legal advantage is significant enough to put a child through the humiliation of asking a parent to pay for family-provided care.

The system of informal giving is so important that few families will sign on to the lawyer-invented alternatives. This means at the time of a Medicaid application some elders will be punished for giving money to their children, and some children who might have received money for providing care will see that money go to care centers or the government.

I will continue to advise against joint bank accounts (a form of gift), joint ownership of real property (another form of gift) and outright gifts of money from elders to their children. I will offer care contracts to be signed by the elders and their children in the hope that the elder's money will flow in a structured way to family care providers rather than nursing homes or the government. A few families will take my advice, but most will not.

I don't blame the families who decline to accept my advice. They choose their family culture over legalism and who am I to blame them. The legal rules and presumptions were developed to stop the small percentage of people who used informal gifting to scam the system. The rules stop the cheaters and mildly annoy the vast majority. Families, I have learned, will put up with a significant amount of annoyance to keep the long established system of gifts in place, and when all is said and done few families are worse off because of it.

We lawyers see the exchange of gifts as a problem, and we offer solutions. Most families who come to me don't see the problem, and thus decline my solutions. I cannot say they are wrong, but I always want their decisions to be informed. 

I have more to say about gifts. In the system of reciprocal gifts I have described there is usually one or more family member keeping accounts of who did the giving and who did the receiving. Where accounts are kept there must come a day of reckoning. That day comes when the elder dies. In my next post, I talk about gifts and the administration of estates.

How to get rid of a predatory professional guardian or conservator in Oregon.

IMPORTANT DISCLAIMER: There are no predatory professional fiduciaries in Oregon. Every single professional guardian or conservator in the state of Oregon is a wonderful, hard working, ethical, and caring person. Thus, the legal tactics discussed below are entirely hypothetical.

With the above disclaimer in mind, let's talk about how to get rid of an unwanted professional fiduciary. (A fiduciary, for purposes of this article, is a court-appointed guardian or conservator.) Some Oregon elder law lawyers think it is impossible to get rid of a court-appointed fiduciary—that once appointed the fiduciary is there for the life of the elder. There is a lot of evidence for this opinion, but I am not so pessimistic.

I may be crazy enough to believe that that there are ways to dislodge an oppressive professional guardian or conservator, but I am not so crazy as to think it is easy. If you are contemplating the strategy laid out in this article be assured that the road is a difficult and costs are high. It should not be attempted by anyone short on time, money, or patience. People email me all the time with horribly sad stories about the court-appointed fiduciary who is making their family miserable. They ask me to help and, promise to pay me ten dollars a month for a thousand years if I will take the case. I don’t take any of them. This is a tough job requiring a lot of work on my part. It can’t be done on the cheap no matter how heart rending the story.

If you have decided you have what it takes--emotionally and financially to try it--the first thing to do is map out the players.

The professional fiduciary.

Who is it? What is the fiduciary’s reputation in the elder law community. Does the fiduciary avoid or embrace litigation? Does the fiduciary avoid or embrace alternative dispute resolution techniques?

The professional fiduciary’s lawyer.

We ask the same questions about the lawyer as we do about the fiduciary plus a couple more. The big question is who is running the show? Some fiduciaries control their lawyers. Others trust their lawyer to handle all legal matters and do whatever the lawyer says, no matter how crazy it is. We need to know who is making the decisions.

The judge

Who is the judge? Judges and court staff have favorites. You want to know whether the fiduciary or the lawyer is a teacher’s pet. At some point the judge appointed the fiduciary. We must at all costs avoid saying, suggesting or implying that the judge was wrong when she initially made the appointment. This is doubly true if the fiduciary or the lawyer representing the fiduciary is a court favorite.

The family and the plan

In order for this to work the family has to be fully lawyered up and they have to present a united front. If the family is squabbling, any attempt to remove a fiduciary is doomed. One of the common reasons for appointing a professional fiduciary is that the family cannot agree on a care plan for the elder. If that conflict still exists the chances of getting the fiduciary removed or replaced is pretty much nil.

There are two common roadblocks to family unity, either of which will doom an attempt to remove a professional fiduciary.

One roadblock is a passive attorney for the elder. Often the elder has an attorney, maybe a court-appointed attorney, who is more interested in keeping good relations with the fiduciary or the fiduciary’s attorney than being aggressive in protecting the elder. If the lawyer for the elder is not on board, you will have to throw in the towel. No matter how united the rest of the family is, you can't get there without the cooperation of the lawyer who represents the elder.

The other common roadblock is a recalcitrant sibling. One child, usually the child who petitioned to have the fiduciary appointed, may have a loyalty to the situation he or she helped create. You have to get this sibling on board with the plan if you have any chance at all. Once you have the sibling on board you need the sibling’s lawyer on board. This can be a problem.

Elder law lawyers and professional fiduciaries feed off of each other. Normal people don’t know professional fiduciaries. Elder law lawyers do. Oregon elder law lawyers recommend the professional fiduciaries they know. When a fiduciary gets hired because of the lawyer’s recommendation, the fiduciary returns the favor by hiring the elder law lawyer on other cases. If your Oregon elder law lawyer recommends a certain fiduciary, don’t be surprised if the lawyer has previously represented that fiduciary. Once this mutually beneficial relationship has been going on for a while, the lawyer is understandably unhappy to hear that his client now wants to remove the same fiduciary the lawyer recommended earlier. The client will have to be firm in his directions to the lawyer, or, in some cases, get a new lawyer.

If the members of the family and their lawyers cannot unite in the plan to remove or replace the fiduciary, it is not going to work. If the family is a loggerheads about what to do, but not actually shooting at each other, I recommend elder mediation. There are good mediators who work with the families of elders to bring families back together. They aren’t cheap, but they charge less that lawyers and do more to unite families than lawyers have ever done.

Many people who come to me for help getting rid of a court-appointed guardian or conservator have a different plan. They want to make a list of all the bad things the fiduciary did and use the list to get the judge to un-appoint the fiduciary. This plan is always attractive to clients, it being a lot easier to point out other peoples' faults than to heal self-inflicted wounds that have plagued the family for years. The plan involving a list of misdeeds by the fiduciary doesn't work.

So let's assume that the family is united. The unity may be fragile, limited even to a mediated family agreement regarding the future of the elder, but that is enough. At this point the family member with the best relationship with the fiduciary—usually the family member who started the legal proceedings in the first place—simply asks the fiduciary to step aside in favor of a different, competent guardian or conservator.

Lawyers under appreciate the usefulness of asking for what they want. Somewhere somebody taught them that it is better to bluster and threaten. It is not. Often when I want to pursue a legal plan I will simply call up all the other lawyers, tell them what I want, and ask if it is okay. Many times they simply agree. I have had cases in which I got the consent of several different lawyers for every step of a legal plan before ever writing a single legal document.

If the family is united and makes a polite request that the existing guardian or conservator step aside, the court-appointed fiduciary is under incredible pressure to comply with the request. The family does not have to point to wrongdoing. It simply has to say that all members feel a different guardian or conservator would better serve the needs of the family. The fiduciary has no reason to stay other than the economic benefit it receives, and no fiduciary ever wants to maintain the she is holding onto the case for the money.

If the fiduciary refuses to step aside after being asked, you can then petition the court. At this point you still do not have to list the misdeeds of the fiduciary. You simply, united as a family, ask the court to appoint a different, but equally competent guardian or conservator.

No plan is perfect. This one is not guaranteed and there may be others, but I have seen a lot of different families and a lot of different lawyers try to dislodge an unwanted professional fiduciary who had embedded him or herself into a client's family. This is the only plan I have ever seen work.

No-contest clauses in Oregon wills and trusts

Oregon elders who expect trouble among the heirs when it comes time to distribute the estate often include a no-contest clause in the will or trust. A no-contest clause, also known as an in terrorem clause, normally says that anyone who contests the will or trust gets disinherited. People put these clauses in their estate planning documents to discourage litigation. And that it does. Oregon elder law and probate lawyers like me who sometimes challenge the validity of wills and trusts look for these clauses and tread carefully whenever we find them.

This post will examine how no-contests clauses work and don't work. In practice, the clauses are tricky end can, under certain circumstances, protect the bad guys while the good guys get cheated.

Let's get the obvious out of the way at the beginning. No-contest clauses only dissuade litigation by someone who receives something of value from the estate. Let's say Adam has two sons, Cain and Abel. Adam decides to leave his entire estate to Abel, and puts a no-contest clause in his will saying that if anyone challenges the will, that person receives nothing. Cain thinks that Adam did not have the mental capacity to make a will when he disinherited Cain, or that Abel used undue influence to get Cain disinherited. Therefore, Cain lawyers up and challenges the will. Cain is not dissuaded by the no-contest clause because he receives nothing anyway.

If Cain's challenge is unsuccessful, the judge deciding that Adam had testamentary capacity and was not unduly influenced, then Cain is no worse off than he was under the will. If, however, Cain is successful, the judge ruling that old Adam was nutty as a fruitcake when he signed the will, then the whole will, including the no-contest clause is thrown out. Adam is now intestate—meaning he died without a valid will—and therefore his estate is distributed according the law. The law is that when you die unmarried without a valid will your children take your estate in equal shares. Thus, Cain and Abel each get half. Cain has succeeded in getting half of the estate even though the will had a no-contest clause.

The moral of the story is that if you think that your son, Cain, might challenge the will and you want a no-contest clause to stop him, you have to leave him enough money so that he does not want to risk losing it. Let's say Adam had a million dollar estate and left $900,000 to Abel and $100,000 to Cain. Now, if Cain challenges the will, he risks losing $100,000 to gain $400,000. It is a risk he will think long and hard about. Having $100,000 is significantly better than having nothing.

The complexity of no-contest clauses does not stop here. The clause, under certain circumstances, can protect bad guys and prevent your rightful heirs from getting their inheritance.

Let's say that Adam puts his no-contest clause into a trust that leaves his estate equally to his loving sons, Cain and Abel. When he executes the trust, Adam is healthy, robust and clearly capable of doing an estate plan. The no-contest clause disinherits anyone who challenges the trust.

When Adam is on his deathbed, wracked with pain and suffering from delirium, Cain comes in and puts in front of Adam an amendment to the trust which disinherits Abel and leaves everything to Cain. Adam dies the next day.

Abel is furious. He goes to Cain and claims that Adam did not have the mental capacity to write the amendment and was pressured by Cain to sign the document. Cain admits it. Cain says, "I am sure that no judge would uphold the amendment. However, the no-contest clause was in the original trust. The no-contest clause was signed when Adam was capable and not subject to undue influence." Thus, if Abel challenges the amendment, he has challenged a provision of the trust, and will be disinherited even if your challenge succeeds. Abel, who is really the good guy, receives nothing from the trust and receives nothing if he challenges the wrongfully obtained amendment.

The situation described above would be the same if Adam had written a will and Cain had shown up at Adam's bedside with a codicil. (A codicil adds to or changes a will without revoking the original will).

I don't know of any court that has truly tackled this problem, but it appears that if you put a no-contest clause in your estate plan, and then later someone uses trickery to get you to change that plan (but without actually revoking the original document with the no-contest clause) you may have made it very risky for your rightful heirs to challenge the wrongfully obtained document.

I get cases with these kind of problems because families keep putting estate planning documents in front of elders while they are dying. The family is in stress and no person should ever be doing estate planning from a hospital bed.

So what to do to protect yourself? Make your estate plan when you are healthy and do not put no-contest clauses in your estate planning documents. Because the clauses only effect those people who receive a substantial portion of your estate, only those you really care about are affected. If a document is wrongfully obtained or made invalid because of your dementia, it is probably better that one of your loved ones be able to bring the problem before a judge. You do not want to make your loved ones unable to challenge fraudulently obtained documents.

If your attorney insists on a no-contest clause in your estate planning document, clearly state that the no-contest provision applies only to the original document and does not prevent the challenge of a codicil or amendment.

We all want to avoid litigation over our estates. Litigation is bad, but worse is having your estate go somewhere you never intended. Don't handcuff your family's ability to use the courts as they were intended to be used.

Oregon Elder Law: The Oregon Courts, the Department of Veterans Affairs and the problem of competing fiduciaries.

This is a complicated post. You may want to review my earlier posts on guardians, conservators and professional fiduciaries if you aren't comfortable with those concepts..

In my practice I run into three types of fiduciaries. There are social security rep payees. There are state court appointed conservators and there are fiduciaries appointed by the US Department of Veterans Affairs (USDVA).

Social Security doesn’t present much of a problem. Social Security will normally honor an appointment of a fiduciary by a state court by making the fiduciary the rep payee for Social Security. That puts the state and federal money in the same hands. Then, when I do an annual accounting to the state court, with a wink and a nod, I include the social security, as if it were subject to state court administration. It is a courtesy to the state court so that judges have a full picture of the protected person's finances.

The problem arises when state appointed fiduciaries and those appointed by the USDVA clash. The USDVA has its own system, and unlike Social Security, the USDVA and the state courts do not always play well together..

In addition to the tension inherent in having two parallel systems, there is often an atmosphere of distrust between those who work primarily in one system or the other. Partisans on the state court side allege that USDVA appointed fiduciaries are untrained, overworked, and unresponsive. Partisans on the federal side allege that state court fiduciaries are arrogant, overpaid and rapacious. I try to stay out of the crossfire, but the partisans are easy to find and can make these cases more difficult than they already are.

The problem for the elders arises when a state court conservator is appointed for a protected person who already has a USDVA rep payee. The USDVA will not normally make the state appointed conservator the rep payee for USDVA funds, so the protected person ends up with two fiduciaries. Two fiduciaries are not better than one, particularly when the two money managers don’t believe the other one truly deserves to be there. It gets even worse if the state court also appoints a professional guardian who wants to be paid by somebody, but isn’t quite sure who. In these cases, every expense has to be negotiated by the two fiduciaries.

Some lawyers believe they can avoid the two-fiduciary problem by having a state court appoint the Oregon Department of Veterans affairs as the state court fiduciary. The theory may be that the two agencies have similar names so they will cooperate with each other. That isn’t necessarily true. The lawyer hopes that the USDVA will make the ODVA the rep payee for federal VA benefits thereby putting a state agency in charge of the federal money. That might happen, or it might not. The USDVA, it seems to me, is particularly reluctant to appoint the ODVA as rep payee for federal benefits if it looks like the appointment of the ODVA was instigated primarily as a strategy to get state control of USDVA payments. In such cases, the USDVA often leaves its own fiduciary in place to manage the federal money. The protected person ends up paying both the ODVA and the USDVA fiduciary.

The situation is complicated by the fact that when amounts over $10,000 accumulate in a USDVA account, the USDVA may (or may not)  ask the local USDVA fiduciary to apply for conservatorship under state law. If the fiduciary is appointed he will thereafter be paid according to state law rather than federal law. For the fiduciary, this usually means a raise. If, however, the USDVA fiduciary is not appointed--say for example the court finds that the protected person is competent or that a different person is more appropriate to serve--then the USDVA fiduciary will continue to administer the USDVA money. Even when the USDVA initiates the proceeding in state court, the state doesn’t get to choose who will manage VA money.

I had one case where the USDVA fiduciary applied to be a successor state law conservator after a family member resigned. After reviewing a visitors report, the court found that that protected person no longer needed a conservator. The USDVA makes its own capacity determinations and ignored the state court ruling. Thereafter the USDVA left the rep payee in place and cut the monthly budget of the veteran because he could now pay his living expenses out of the funds freed up by the termination of the state court conservatorship.

If you have the USDVA involved in your case you have to remember that the USDVA is not bound by state court determinations and regularly ignores them. You cannot subpoena USDVA medical providers as witnesses in state court. The USDVA makes its own competency determinations. The USDVA fiduciaries do their own accounting's each year to the USDVA, accountings which are often disapproved (for sometimes serious and sometimes trivial reasons). USDVA fiduciaries are contractors who cannot voluntarily turn over federal money to family or state authorities and cannot, if they want to keep their contracts, resign as the fiduciary for a particular veteran. All the important decisions and expenditures are made by the USDVA field examiners and the people at the fiduciary hub.

The moral is--I think--that when I get involved with someone who has a USDVA fiduciary, I have to look ahead. I can’t adopt a legal strategy that will create dueling fiduciaries. If all the money in the case comes from Social Security and USDVA, there is no money for the state courts to manage. In those cases I have to be very circumspect about asking for a state law conservator. If I want to change the USDVA fiduciary in charge, I have to tread lightly and use charm instead of bluster. The only way to force the USDVA to do anything is in federal court where the law is stacked against me. The USDVA folks know this. They know I don’t like federal court and my clients can’t afford to go there. The people at the USDVA will, however, listen to respectful and well presented plans that enhance the life of the veteran. And, supposedly, that is what we all want.