How Do I Appeal a Finding of Incompetency by the Vetern's Affairs?
Full Question:
Answer:
I'm unable to determine the nature of the fiduciary's powers or whether the fiduciary was appointed by the state or federal authorities, so I'm including both federal and state law below. I suggest you consult a local attorney who can review all the facts and documents invovled.
Please see the following federal laws to determine applicability:
§ 13.100 Supervision of fiduciaries.
(a) Federal fiduciaries. In Federal fiduciary cases, the Veterans Service Center Manager may, when he or she deems it necessary for the protection of the beneficiary's interests:
(1) Require an accounting, formal or informal, of Department of Veterans Affairs benefits paid.
(2) Terminate the appointment of a Federal fiduciary and appoint a successor Federal fiduciary.
(Authority: 38 U.S.C. 5502)
(b) Court-appointed fiduciaries. In court-appointed fiduciary cases, the Veterans Service Center Manager will take such informal action as may be necessary to assure that the needs of the beneficiary are provided for and Department of Veterans Affairs benefits are prudently administered and adequately protected.
(Authority: 38 U.S.C. 501)
(c) Unsatisfactory conditions. In any case where a fiduciary fails to render a satisfactory account or has collected or paid, or is attempting to collect or pay, fees, commissions, or allowances that are illegal or inequitable or in excess of those allowed by law, or has failed to use Department of Veterans Affairs funds for the benefit of the beneficiary or the beneficiary's dependents, or has otherwise failed or neglected to properly execute the duties of his or her trust, and informal efforts by the Veterans Service Center Manager to correct the situation prove unsuccessful, the case will be referred to the Regional Counsel. In such cases the Veterans Service Center Manager may have all Department of Veterans Affairs benefits suspended.
(Authority: 38 U.S.C. 5502)
(d) Misappropriation, embezzlement or violation of Federal statutes. When the evidence indicates a prima facie case of misappropriation, embezzlement or violation of the Federal statutes, the matter will be submitted to the Regional Counsel for review and, if appropriate, the Regional Counsel's referral to the U.S. Attorney.
(Authority: 38 U.S.C. 6101)
§ 13.104 Accounts of court-appointed fiduciaries.
(a) Requirement to account; notices of filings and hearings. Accounts may be required from court-appointed fiduciaries as provided by State law, but in no event less frequently than once every 3 years. Arrangements will be made with the courts whereby notices of filing of all petitions, accounts, etc., and of hearings on same, relative to court-appointed fiduciary cases wherein the Department of Veterans Affairs is an interested party, will be sent to the Veterans Service Center Manager for review, distribution and such action as may be appropriate. Matters which require legal action will be referred to the Regional Counsel, and will include any matter in which the Department of Veterans Affairs has any objections to offer.
(b) Fiduciary and beneficiary in jurisdiction other than a State of the United States. Accounts will not be required, in the discretion of the Veterans Service Center Manager, in cases where the fiduciary and beneficiary permanently reside in a jurisdiction other than a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico or the Republic of the Philippines, and the fiduciary appointment was made in said jurisdiction.
§ 14.602 Requests for medical information.
(a) Where there is indication that a tort claim will be filed, medical records or other information shall not be released without approval of the Regional Counsel.
(b) Request for medical records, documents, reports, or other information shall be handled in accordance with the provisions of §1.511(a)(2) of this chapter.
§ 14.604 Filing a claim.
(a) Each person who inquires as to the procedure for filing a claim against the United States, predicated on a negligent or wrongful act or omission of an employee of the Department of Veterans Affairs acting within the scope of his or her employment, will be furnished a copy of SF 95, Claim for Damage, Injury, or Death. The claimant will be advised to submit the executed claim directly to the Regional Counsel having jurisdiction of the area wherein the occurrence complained of took place. He or she will also be advised to submit the information prescribed by 28 CFR 14.4 to the extent applicable. If a claim is presented to the Department of Veterans Affairs which involves the actions of employees or officers of other agencies, it will be forwarded to the Department of Veterans Affairs General Counsel, for appropriate action in accord with 28 CFR 14.2.
(b) A claim shall be deemed to have been presented when the Department of Veterans Affairs receives from a claimant, his or her duly authorized agent or legal representative, an executed SF 95, or other written notification of an incident, together with a claim for money damages, in a sum certain, for damage to or loss of property or personal injury or death: Provided, however, That before compromising or settling any claim, an executed SF 95 shall be obtained from the claimant.
(c) A claim presented in compliance with paragraphs (a) and (b) of this section may be amended by the claimant at any time prior to final Department of Veterans Affairs action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted in writing and signed by the claimant or his or her duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, the Department of Veterans Affairs shall have 6 months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of the amendment.
§ 14.605 Suits against Department of Veterans Affairs employees arising out of a wrongful act or omission or based upon medical care and treatment furnished in or for the Veterans Health Administration.
(a)
(1) Section 2679 of title 28 U.S.C., provides that no suit will lie against a Federal employee, or the employee's estate, for damage to property, personal injury, or death resulting from his or her wrongful act or omission while acting within the scope of his or her office or employment with the Federal Government. An action against the United States under 28 U.S.C. 2671–2680 is the exclusive remedy under these circumstances.
(2) Section 7316 of title 38 U.S.C., provides that
(i) where there is remedy against the United States under 28 U.S.C. 2671–2680, or
(ii) where proceedings for compensation or other benefits from the United States are provided by law, and the availability of such benefits precludes a remedy under 28 U.S.C. 2671–2680 (as is the case, for example, in the Federal Employees' Compensation Act, 5 U.S.C. 8101, et seq. ), such recourse is the exclusive remedy for property damage, personal injury, or death allegedly occurring as a result of malpractice or negligence committed by a physician, dentist, nurse, physician's assistant, dentist's assistant, pharmacist or paramedical (for example, medical and dental technicians, nursing assistants, and therapists), or other supporting personnel, while furnishing medical care and treatment in the exercise of duties in or for the Veterans Health Administration. Accordingly, a malpractice or negligence suit for property damage, personal injury, or death will not lie against such personnel under the circumstances set forth in this subparagraph.
(b) The Department of Justice will defend any civil action or proceeding brought in any court against persons referred to in paragraph (a) (1) or (2) of this section under the circumstances set forth therein. Accordingly, when a suit is filed against any employee of the Department of Veterans Affairs as a result of a wrongful act or omission arising out of employment with the Government, or as a result of furnishing medical or dental care and treatment in or for the Veterans Health Administration, the employee shall immediately forward a copy of all papers served on him or her to the Regional Counsel having jurisdiction over the area in which the employee works. The employee will also promptly forward to the appropriate Regional Counsel a signed statement indicating whether he or she desires the Department of Justice to provide representation, and to otherwise protect his or her interests as provided for by law. Even though there may not have been service, if an employee learns that a suit arising from either of the above-described circumstances has been filed against him or her, the employee shall immediately so advise the appropriate Regional Counsel, provide the Regional Counsel with a brief description of the facts involved, and state whether he or she desires Federal intervention.
(c) Upon receipt of notice that suit has been filed against an employee of the Department of Veterans Affairs who is entitled to protection under 28 U.S.C. 2679 or 38 U.S.C. 7316, the Regional Counsel having jurisdiction over the place where the employee works will conduct a preliminary investigation, which will include an affidavit by the employee's supervisor as to whether the defendant-employee was acting in the scope of his or her employment at the time of the incident, and a request from the defendant-employee for representation. The affidavit will contain a factual description of the employee's duties and responsibilities at the time of the incident and should describe the incident in question. Upon receipt of such information, the Regional Counsel will make a preliminary determination as to whether such suit comes within the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316. The Regional Counsel will refer the matter to the appropriate U.S. Attorney with a recommendation as to whether the employee is eligible for protection under 28 U.S.C. 2679 or 38 U.S.C. 7316. The U.S. Attorney will decide whether the Department of Veterans Affairs employee is eligible for the protection. The Regional Counsel will submit to the General Counsel a preliminary report in duplicate containing the information furnished the U.S. Attorney. In all such cases, the Regional Counsel will conduct a complete investigation of the facts and law. Two copies of the investigation report will be sent to the General Counsel and one copy will be sent to the appropriate U.S. Attorney. The General Counsel, through the Regional Counsel, will keep the employee advised of the action being taken concerning the suit. In the event that the U.S. Attorney or the Department of Justice determines that the employee is not eligible for immunization pursuant to one of the aformentioned provisions, the General Counsel's office, through the Regional Counsel, will advise the employee and will call to his or her attention the discretionary conditional indemnification provisions of section 7316(e) of title 38 U.S.C.
(d) Where a civil action is commenced in a State court against a Department of Veterans Affairs employee, and the matter is within the purview of either 28 U.S.C. 2679, or 38 U.S.C. 7316, the Department of Justice will be asked to remove such suit to the appropriate Federal District Court before trial, where it will be deemed an action against the United States. The defendant employee will be dismissed from the suit. After such removal, the United States has available all defenses to which it would have been entitled if the action had originally been commenced against the United States in the proper Federal District Court. Should a Federal District Court determine that the Department of Veterans Affairs employee whose acts or omissions gave rise to the suit was not acting within the scope of his or her office or employment, and therefore not eligible for immunization as provided for in the aforementioned section, the case will be remanded to the State court from which it was removed, the employee will be reinstated as the defendant, and the United States will be dismissed from the suit. Where the employee has been reinstated as the defendant under such circumstances, in order to protect any rights which he or she may have under 38 U.S.C. 7316(e), he or she shall immediately notify the General Counsel, through the local Regional Counsel. Through the Regional Counsel, the General Counsel will call the employee's attention to the discretionary conditional indemnification provisions of section 7316(e).
(e) Under the authority of 38 U.S.C. 7316(e), the Secretary of Veterans Affairs may pay for monetary damages sustained by or assessed against an individual (or his or her estate) described in paragraph (a)(2) of this section, as the result of any suit instituted against such individual which is not congnizable under the provisions of 28 U.S.C. 2671–2680 because the individual was assigned to a foreign country, the said individual was detailed to a State or political division thereof, or the cause of action was specifically excluded under the provisions of 28 U.S.C. 2680(h); Provided, That the amount of damages sustained is reasonable when compared with similar cases, litigated or settled, and the United States was given a reasonable opportunity to defend such individual and to participate in settlement negotiations.
Please see the following MN statutes to determine applicability:
Sec. 5. {524.5-120} BILL OF RIGHTS FOR WARDS AND PROTECTED PERSONS.
The ward or protected person retains all rights not restricted by court order
and these rights must be enforced by the court. These rights include the
right to:
(1) treatment with dignity and respect;
(2) due consideration of current and previously stated personal
desires, medical treatment preferences, religious beliefs, and other
preferences and opinions in decisions made by the guardian or conservator;
(3) receive timely and appropriate health care and medical treatment
that does not violate known conscientious, religious, or moral beliefs of the
ward or protected person;
(4) exercise control of all aspects of life not delegated specifically
by court order to the guardian or conservator;
(5) guardianship or conservatorship services individually suited to
the ward or protected person's conditions and needs;
(6) petition the court to prevent or initiate a change in abode;
(7) care, comfort, social and recreational needs, training, education,
habilitation, and rehabilitation care and services, within available
resources;
(8) be consulted concerning, and to decide to the extent possible, the
reasonable care and disposition of the ward or protected person's clothing,
furniture, vehicles, and other personal effects, to object to the disposition
of personal property and effects, and to petition the court for a review of
the guardian's or conservator's proposed disposition;
(9) personal privacy;
(10) communication and visitation with persons of the ward or
protected person's choice, provided that if the guardian has found that
certain communication or visitation may result in harm to the ward's health,
safety, or well-being, that communication or visitation may be restricted but
only to the extent necessary to prevent the harm;
(11) marry and procreate, unless court approval is required, and to
consent or object to sterilization as provided in section 524.5-313,
paragraph (c), clause (4), item (iv);
(12) petition the court for termination or modification of the
guardianship or conservatorship or for other appropriate relief;
(13) be represented by an attorney in any proceeding or for the
purpose of petitioning the court; and
(14) vote, unless restricted by the court.
524.5-317 TERMINATION OR MODIFICATION OF GUARDIANSHIP; COURT ORDERS
(a) A guardianship terminates upon the death of the ward or upon order of
the court.
(b) On petition of any person interested in the ward's welfare the court
may terminate a guardianship if the ward no longer needs the assistance or
protection of a guardian. The court may modify the type of appointment or
powers granted to the guardian if the extent of protection or assistance
previously granted is currently excessive or insufficient or the ward's
capacity to provide for support, care, education, health, and welfare has so
changed as to warrant that action. The court may make any other order that
is in the best interests of the ward or may grant other appropriate relief.
(c) Except as otherwise ordered by the court for good cause, the court,
before terminating a guardianship, shall follow the same procedures to
safeguard the rights of the ward as apply to a petition for guardianship.
Upon presentation by the petitioner of evidence establishing a prima facie
case for termination, the court shall order the termination and discharge the
guardian unless it is proven that continuation of the guardianship is in the
best interest of the ward.
196.051 Guardianship.
Subdivision 1. Appointment of commissioner. The
district court may appoint the commissioner of veterans
affairs guardian of the estate of a veteran or dependent for
whom the appointment of a guardian is found by the court to
be necessary. When appointed and qualified, the commissioner
may act as guardian of the estate. The district court is not
authorized to appoint the commissioner guardian of the
person of a veteran. The word "veteran" as used in this
section shall have the same meaning as it is defined in
section 197.447.
Subd. 2. Bonding. Notwithstanding any other law, the
commissioner is not required to file a bond when acting as
guardian pursuant to authority granted by this section.
Subd. 3. Funds. The commissioner may commingle the
funds of persons who are under the commissioner's
guardianship pursuant to authority granted by
section 196.051. The commissioner shall keep complete and
accurate accounts showing each transaction that occurs with
respect to the funds of each person under the commissioner's
guardianship. Money in a guardianship fund is appropriated
to the commissioner to carry out the guardianship.
Subd. 4. Fees. When permitted by the court, the
commissioner may charge a fee of up to five percent of the
income of the estate of the person under guardianship to
cover the expenses of providing the guardianship service.
145C.08 Authority to Review Medical Records.
A health care agent acting pursuant to a health care
directive has the same right as the principal to receive,
review, and obtain copies of medical records of the
principal, and to consent to the disclosure of medical
records of the principal, unless the principal has otherwise
specified in the health care directive.