Referral and Evaluation
The process through which a civilian SSA beneficiary is referred and evaluated for a representative payee is arguably less rigorous than is the referral of a veteran for the VBA fiduciary program. In the former, the treating clinician’s response to a single question, “In your opinion, is the beneficiary capable of managing his/her funds?” on the application for disability benefits often serves as the impetus for payee assignment.
In the latter, the VBA uses a rating agency to make determinations of a veteran’s capacity to handle VBA benefits either after receiving a request for such a determination or after receiving notice that a state court has determined the person is incompetent and/or has appointed a guardian to the person. The Code of Federal Regulations defines the criteria for finding a veteran with a psychiatric disability incompetent to manage his or her finances as follows: “a mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.”17 As such, if a veteran with mental illness is to be assigned a fiduciary, there needs to be evidence that the mental illness causes financial incompetence.
To assign a fiduciary, multiple sources of evidence are considered in demonstrating behaviors indicating financial incapacity. To illustrate, in Sanders v Principi, the VBA reviewed a veteran’s psychiatric history and weighed the opinion of a psychiatrist that the veteran’s mental illness was in remission against the opinion of family members that the veteran did not possess the ability to “conduct business transactions as his cognitive skills were severely impaired.”18
The VBA is expected to conduct a thorough review of the record and provide reasoned analysis in support of its conclusions, as discussed in Sims v Nicholson.19 The Sims court asserted that to render its decision, the VBA can consider a wide array of information sources, including field examination reports, private psychiatric examinations, medical examiners’ reports, and private physicians. Veterans are informed of the reasons behind the need for a fiduciary, which less commonly occurs in assigning representative payees in the SSA. Although the documented policy for evaluating and determining need for a fiduciary is impressive in its rigor, it is unknown to what extent these standards are put into actual practice.
For health care clinicians, deciding when to request formal assessment by the VBA rating agency of a veteran’s capacity to manage benefits can be challenging to both clinical judgment and to the therapeutic relationship. Although clinicians such as primary care providers, nurses, social workers, and case managers often hear information from the veteran and his/her family about the veteran’s day-to-day management of funds, most of these providers are not necessarily qualified to make a formal assessment of financial capacity.
Black and colleagues developed a measure to assess money mismanagement in a population composed primarily of veterans.20 Although this measure was correlated with client Global Assessment of Functioning scores and client-rated assessment of money mismanagement, it was not correlated with clinician judgment of the individual’s inability to manage funds. Rosen and colleagues similarly found that clinician assessment of whether a veteran would benefit from a trustee arrangement was not associated with the veteran meeting more stringent objective criteria, such as evidence that mismanagement of funds had resulted in the veteran’s inability to meet basic needs or had substantially harmed the veteran.21 Recognizing that their clinical judgment has limitations without external guidance, clinicians may postpone referral, particularly if there is also concern that the veteran may misunderstand the referral decision as a personal judgment, possibly impairing future relationships with the clinician or clinical team.
One option a clinician can consider prior to an official request to the VBA rating agency is to refer the veteran to a trained neuropsychologist for a financial capacity evaluation. The information obtained normally includes a detailed clinical interview, standardized performance measures, and neuropsychological testing.22 This evaluation may allow the clinician to feel more confident about his/her decision and provide a nonjudgmental way of initiating discussion with the veteran. Clinicians may also want to discuss the situation with staff of the Fiduciary Program prior to making a referral. The VBA website (http://benefits.va.gov/fiduciary) provides information about the fiduciary process, including regional contact information for fiduciary services, which clinicians and family members may find useful.
The Fiduciary Role
Once an individual has been determined to need a formal trustee, the decision of who will assume this role differs for SSA and VBA systems. Whereas over 70% of SSA-appointed representative payees for individuals are family members, the majority of fiduciaries for veterans are attorneys or paralegals.23,24 The ultimate designation of a trustee can have critical consequences for both beneficiaries and their families. Some studies have shown that people with psychiatric disabilities who are financially dependent on family members are significantly more likely to be aggressive and even violent toward those family members, with a greater elevated risk of conflict if the disabled person has more education, or even better money management skills, than the assigned family trustee.25-27 Although there are fewer family fiduciaries in the VBA system, it is still possible that veterans with psychiatric disabilities will have these conflicts.
