X.ii.6.A.1.f. Handling Requests for Incompetency Determinations Without Medical or Judicial Evidence | | Use the table below for proper procedures for handling requests for a finding of incompetency from a Veteran or beneficiary or from a third-party source.| If the request or evidence showing a change in competency status is ... | Then follow the steps in the table below to handle the request for a determination concerning competency status … |
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| a request from a Veteran or other beneficiary to be rated incompetent or have a fiduciary appointed without associated medical or court evidence | | Step | Action |
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| 1 | If a rating EP is- not currently pending, establish the appropriate compensation or pension rating EP, or
- currently pending, control the competency issue under the rating EP.
| | 2 | Establish competency as a contention in the Veterans Benefits Management System (VBMS). | | 3 | Complete any necessary development for the competency or other pending issues.- Review VA treatment records and associate all relevant treatment records with the Veteran’s claims folder.
- In developing the claimed issues, assess whether the request for a competency determination may raise other issues, such as entitlement to an increased evaluation for a service-connected mental disability, as within the scope of the request for the competency determination.
- This is a determination dependent on the facts of the case.
- Do not routinely consider a request for a competency determination to necessarily be a claim for a related mental disability.
- Request a VA examination to assess competency status when warranted based on review of the Veteran’s or beneficiary’s statement and/or the other evidence of record.
Reference: For more information on examinations for non-Veteran claimants and beneficiaries, see M21-1, Part IV, Subpart i, 2.E.2.a. | | 4 | - For a Veteran, refer to the procedures at M21-1, Part X, Subpart ii, 6.A.2.a to evaluate evidence of incompetency.
- For a child who is over age 18 and permanently incapable of self-support, refer to the procedures at M21-1, Part X, Subpart ii, 6.A.2.c.
- For other beneficiaries, refer to the procedures at M21-1, Part X, Subpart ii, 6.A.2.d.
| | a request from a third party to have a Veteran or other beneficiary rated incompetent without associated medical or court evidence | | Step | Action |
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| 1 | Establish EP 400. | | 2 | Review VA treatment records for any evidence of incompetency. | | 3 | - If VA treatment records do include medical evidence showing incompetency,
- associate the records with the Veteran’s claims folder
- change EP 400 to EP 020 or 120, as appropriate, and
- treat the request as receipt of medical records. Follow the procedures at M21-1, Part X, Subpart ii, 6.A.3.a.
- If VA treatment records do not include medical evidence pertaining to competency status, go to Step 4.
| | 4 | - If the address for the third party individual who submitted the request is available, send a letter acknowledging receipt of the request using the Competency Request—Third Party Reply letter, as applicable. The letter to the third-party requestor must not include any personally identifiable information for the Veteran or beneficiary. Go to Step 5.
- If the address for the third-party individual who submitted the request is not available, go to Step 5.
| | 5 | Clear EP 400. Note: When unusual circumstances are present, such as an extraordinary situation presented by the third party but without associated medical or legal evidence, the request may be referred to Central Office for an advisory opinion in accordance with M21-1, Part X, Subpart v, 1.A.2 before EP 400 is cleared. |
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2. Considering Competency While Evaluating EvidenceIntroduction | | This topic contains information about considering competency while evaluating the evidence, including- considering whether to address competency of a Veteran
- reviewing competency information received on VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, and
- competency of
- a child permanently incapable of self-support, and
- other beneficiaries.
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Change Date | | October 15, 2024 |
X.ii.6.A.2.a. Considering Whether to Address
Competency of a Veteran | | If the claimant is a Veteran, address competency in a decision whenever- there is
- entitlement to benefits, or
- the potential for the competency decision to impact the outcome of a determination about insurance entitlement under 38 U.S.C. 1922, and
- qualifying evidence raises a question as to the mental capacity to contract or to manage their own affairs, including disbursement of funds without limitation.
Address competency as a separate issue in the rating decision when - incompetency is proposed, or
- a previous rating of incompetency is being reconsidered.
Use the table below for guidance on what action, if any, to take within a rating decision on the matter of competency. | If the evidence ... | Then ... |
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| suggests but does not clearly and convincingly show that the person is incapable of managing the VA benefit payment without limitation | - do not develop
- do not propose incompetency, and
- state in the narrative of the rating decision issue that there was no clear and convincing evidence of incompetency.
| | clearly and convincingly shows that the person is incapable of managing the VA benefit payment without limitation | propose incompetency. |
Important: - Competency must be addressed in cases where a mental condition is initially evaluated as totally disabling or when the total evaluation is continued in a rating decision. This includes
- when individual unemployability is awarded or continued on the basis of a single mental health disability, and
- when assigning or continuing a temporary total evaluation for a mental disorder under 38 CFR 4.29.
- The mere existence of a mental condition with a total evaluation does not automatically correlate to a Veteran’s inability to manage their benefits, but many of the symptoms warranting a total disability evaluation could render the Veteran unable to manage benefits.
- Carefully consider the facts in these cases to determine whether the regulatory standard warrants a proposal of incompetency. When the evidence shows the Veteran is competent, address the competency determination as part of the narrative within the mental condition issue.
- Include the following text in the rating narrative, either generated based on decision points or added using the VA COMPETENT glossary selection within VBMS - Rating for these cases:
There is no evidence of record that shows that you are unable to manage your financial affairs. (38 CFR 3.353) References: For more information on- the criteria for addressing competency, see 38 CFR 3.353
- the presumption of competency, see M21-1, Part X, Subpart ii, 6.A.1.c
- the evidentiary standard for proposing incompetency, see M21-1, Part X, Subpart ii, 6.A.1.d
- insurance purpose determinations for Veterans, see M21-1, Part X, Subpart ii, 6.G, and
- considering issues within scope of a claim, see M21-1, Part V, Subpart ii, 3.A.2.
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X.ii.6.A.2.c. Competency of a Child Permanently Incapable of Self-Support | | If the claimant is a child over the age of 18 and permanently incapable of self-support, the rating activity must resolve the issue of competency for the child because entitlement depends upon permanent incapacity for self-support due to physical or mental disability.If incapacity is due to mental disability- consider competency a factor in determining whether the child is permanently incapable of self-support
- determine competency under the same criteria applicable to Veterans, and
- record the determination in a rating.
Note: Since the incompetency procedures referred to in M21-1, Part X, Subpart ii, 6.D.3 are for payment purposes, do not apply those procedures except in cases where the child would receive direct payment in their own right.References: For more information on |
X.ii.6.A.2.d. Competency of Other Beneficiaries | | If there is evidence of incompetency and the claimant is a non-Veteran, such as a surviving spouse, parent, or VA insurance beneficiary- consider competency a rating issue under 38 CFR 3.353 when there is entitlement to benefits, and
- propose a rating on the issue or undertake any required development.
Exception: A proposed rating decision for competency is not necessary when there is a judicial determination of incompetency; however, a final rating is required.References: For more information on processing |
3. Process for Making Competency DeterminationsX.ii.6.A.3.a. Making Initial Competency Determinations Based on Medical Evidence | | The RO is responsible for all initial competency determinations based on medical evidence. The table below describes the actions involved in making initial competency determinations based on receipt of medical evidence. | Stage | Responsible Employee | Description |
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| 1 | rating activity personnel | - Prepares a rating decision proposing a finding of incompetency after receiving clear and convincing evidence that a payee is incapable of managing their own affairs, including disbursement of funds without limitation, and
- ensures that the facts contained in the proposed rating decision are complete so that they do not need to be repeated in the final rating decision.
Note: If there is a finding of incompetency by a court, follow the guidance in M21-1, Part X, Subpart ii, 6.D.2.f and g. | | 2 | authorization activity personnel | - Provides the payee notice of
- the proposed incompetency rating
- the opportunity for a hearing, and
- any concurrently rendered decisions
- closes any tracked items associated with the pending rating EP
- clears any pending EP that would normally be taken at this point, including release of monthly benefits
- notifies power of attorney, if applicable, per M21-1, Part I, Subpart i, 2.B.1
- accomplishes automated (or, in the event of systematic error, manual) establishment of EP 590, Due Process for Incompetency
- adds any required tracked items to the EP 590, and
- ensures associated documentation is available in the claims folder.
Note: The SOO transfers the EP 590 to the hub of jurisdiction. |
References: For more information on- due process requirements for incompetency determinations, see M21-1, Part X, Subpart ii, 6.D.3
- jurisdiction for competency decisions, see M21-1, Part X, Subpart ii, 6.A.1.a
- evaluating competency when the beneficiary is found incompetent by court decree, see M21-1, Part X, Subpart ii, 6.A.5.b, and
- decree by a court as notice and hearing, see M21-1, Part X, Subpart ii, 6.A.5.a.
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4. Changing Competency StatusIntroduction | | This topic contains information about changing competency status, including- proposing incompetency
- determining restored competency
- limitations after competency is restored, and
- evidence required to restore competency.
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X.ii.6.A.4.a. Proposing Incompetency | | Issue a rating proposing a change in competency status if the evidence of record will result in a change in competency status from competent to incompetent.This proposal may be included in a rating addressing other issues, such as evaluation of a mental disorder.Reference: For more information on procedures to follow upon receipt of evidence of incompetency, see M21-1, Part X, Subpart ii, 6.A.1. |
X.ii.6.A.4.b. Determining Restored Competency | | The determination with respect to restoration of competency rests solely with the- rating activity and not with a medical official, or
- hub, in the case of a Supervised Direct Pay Assessment, submitted by a Field Examiner (FE) (unless one of the exceptions of FPM, Part I, 1.A.2.b, applies).
38 CFR 3.353(d) mandates a presumption in favor of competency when reasonable doubt arises regarding a beneficiary’s mental capacity to manage their own affairs. Competency may be restored based upon credible medical or other evidence.In any case in which the beneficiary has previously been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a- hospital summary
- Supervised Direct Pay Assessment submitted by an FE, or
- report of
- release to or discharge from non-bed care, or
- other material change in condition.
References: For more information on- the authority of the rating activity in determinations regarding competency, see Sims v. Nicholson, 19 Vet.App. 453 (2006)
- jurisdiction of evidence received after a final determination of incompetency, see FPM, Part I, 1.A.2.e, and
- Supervised Direct Pay Assessment, see FPM, Part I, 5.A.3.
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X.ii.6.A.4.c. Limitations After Competency Is Restored | | Restored competency does not in and of itself- warrant a reduction in the evaluation of a Veteran’s disability, or
- establish that a parent or surviving spouse is no longer entitled to aid and attendance.
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X.ii.6.A.4.d. Evidence Required to Restore Competency | | Any evidence showing the beneficiary may be capable of handling funds should be referred to the rating activity. The rating activity will consider this evidence, along with all other evidence of record, to determine whether competency should be restored.Do not routinely request an examination of the beneficiary when evidence indicates that competency has been regained. Under 38 CFR 3.353(b)(3), a beneficiary is not required to undergo a psychiatric examination and/or field examination before competency may be restored. However, a current psychiatric examination and/or field examination may be requested if needed to properly evaluate the beneficiary’s mental capacity to handle their own funds.Note: When an FE recommends restoration of competency on a Supervised Direct Pay Assessment, and evidence is otherwise consistent with or does not conflict with the recommendation, no additional evidence is required to restore competency.References: For more information on- requesting field examinations, see M21-1, Part X, Subpart v, 1.E
- requesting examinations to assess competency status for non-Veteran claimants and beneficiaries, see M21-1, Part IV, Subpart i, 2.E.2.a
- annotation of exam requests when the examinee is rated incompetent, see M21-1, Part IV, Subpart i, 2.A.9.b, and
- Supervised Direct Pay Assessment, see FPM, Part I, 5.A.3.
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5. Evaluating Competency in Special Circumstances
Introduction | | This topic contains information about evaluating competency in special circumstances, including- decree by a court as notice and hearing
- evaluating competency when the beneficiary is found incompetent by court decree
- procedures following receipt of court decree restoring competency
- authorization actions when reinstating benefits for a beneficiary previously rated incompetent
- rating actions when reinstating benefits for a beneficiary previously rated incompetent, and
- referral to a hub after reinstating benefits for a beneficiary with a continued finding of incompetency.
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Change Date | | October 15, 2024 |
X.ii.6.A.5.a. Decree by a Court as Notice and Hearing | | A payee may be considered to have had notice and hearing under the laws of the State so that additional notice and hearing are not required when- the payee has been found by a court of jurisdiction to be incompetent, or
- a court having jurisdiction has appointed a guardian by reason of incompetency for a payee.
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X.ii.6.A.5.b. Evaluating Competency When the Beneficiary is Found Incompetent by Court Decree | | Judicial findings of a court with respect to the competency of a beneficiary are not binding on the rating activity. In such cases- develop all necessary evidence for a rating activity determination, such as
- an examination
- hospital observation, or
- a field examination
- give great weight to a
- court decree of incompetency, and
- the inability to manage financial affairs, and
- do not make a rating of incompetency unless there is clear and convincing evidence of that fact.
Notes:- Examinations, hospital observations, or field examinations are not routinely required to evaluate competency where there is a judicial finding already of record. Conduct additional development only when the evidence of record raises doubt as to the beneficiary’s competency status.
- If the beneficiary continues to be rated competent, mention whether the court made a parallel determination or whether the court made a different determination.
- Follow guidance in M21-1, Part X, Subpart ii, 6.D.2.h if a child over the age of 18 does not have a determination of permanent incapacity for self-support by rating decision. M21-1, Part X, Subpart ii, 6.B.2.c provides that the question of permanent incapacity is one of fact for determination by the rating activity based on competent evidence of record.
- If a temporary court appointment is received and additional appropriate information is available to propose a rating, but there is no judicial determination of record, then the RO should issue due process proposing a rating of incompetency.
- If a temporary court appointment is received, but there is not sufficient information to propose a rating, the RO will provide notice to the sender which identifies what additional information would be necessary to do so.
References: For more information on- processing a judicial determination of incompetency, see M21-1, Part X, Subpart ii, 6.D.2.g
- a child’s permanent incapacity for self-support, see M21-1, Part X, Subpart ii, 6.B
- considering the competency of a child permanently incapable of self-support, see M21-1, Part X, Subpart ii, 6.A.2.c
- requesting field examinations, see M21-1 Part X, Subpart v, 1.E, and
- annotation of examination requests when the examinee is rated incompetent, see M21-1, Part IV, Subpart i, 2.A.9.b.
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X.ii.6.A.5.c. Procedures Following Receipt of Court Decree Restoring Competency | | Follow the guidance in M21-1, Part X, Subpart ii, 6.D.2.i to process a court decree of competency for a beneficiary previously held incompetent. |
X.ii.6.A.5.d. Authorization Actions When Reinstating Benefits for a Beneficiary Previously Rated Incompetent | | Use the table below to determine the appropriate actions following receipt of a request to reinstate benefits for a beneficiary previously rated incompetent, whose benefits were terminated due to| If new medical or other evidence ... | Then the authorization activity will ... |
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| is not received with the request to reinstate benefits | reinstate benefits, as warranted, with continuation of the prior incompetency determination without rating action. | | is received with the request to reinstate benefits | refer the newly-received medical evidence to the rating activity for review for competency determination. |
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X.ii.6.A.5.e. Rating Actions When Reinstating Benefits for a Beneficiary Previously Rated Incompetent | | Use the table below to determine the appropriate actions after a claims folder is referred to the rating activity for review due to the receipt of new medical or other evidence from a beneficiary previously rated incompetent who is now requesting reinstatement of benefits. | If the medical or other evidence received ... | Then ... |
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- shows the beneficiary continues to be incompetent, or
- does not address the beneficiary’s competency
| no rating action is necessary.The rating activity should prepare a deferral, instructing resumption of benefits (as warranted) with the continuation of the prior finding of incompetency. | | indicates that the beneficiary is now competent | the rating activity should issue a rating decision addressing the issue of competency.Reference: For more information on determining restored competency, refer to M21-1, Part X, Subpart ii, 6.A.4.b. |
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X.ii.6.A.5.f. Referral to a Hub After Reinstating Benefits for a Beneficiary With a Continued Finding of Incompetency | | When an incompetent beneficiary’s benefits are reinstated with a continued finding of incompetency, as directed in M21-1 Part X, Subpart ii, 6.A.5.d and e, notify the hub of jurisdiction via the appropriate hub mailbox as indicated in FPM, Part I, 1.A.2.a.Note: The hub will consider whether the prior failure to submit necessary information for continuance of benefits indicates the need for appointment of a different fiduciary. |
Source: VA M21-1 Adjudication Procedures Manual, M21-1, Part X, Subpart ii, Chapter 6, Section A (U.S. government work, reproduced for reference). Browse all sections →
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