Social Security and VA Name Your Agent
Your ever- so-efficient Federal government has a plan in place to appoint an agent to receive your social security or veteran’s benefits in the event you are having trouble managing your finances. Perhaps we should say “two plans” since it would be way too much to ask for the Social Security Administration (SSA) and Department of Veterans Affairs (VA) to actually coordinate their programs.
We will, therefore, compare and contrast the two.
SSA calls the agent a “representative payee” or in shorthand parlance “rep payee.” The VA calls the agent a “fiduciary.” Under both programs, the appointed person is supposed to manage your money for your benefit.
The SSA appoints a rep payee, if it determines that such an appointment is in your best interests because you cannot manage your money. It begins the process when the person seeking to be appointed rep payee files an application on Form SSA-11-BK. After review, the SSA transfers the application to the Disability Determination Services (DDS) in your state. DDS then investigates. If the application is approved, SSA appoints a rep payee who then receives your social security payments.
The VA’s process is more rigorous. It appoints a fiduciary if it determines that you are not able to manage your financial affairs. The VA begins the process when it receives information that you are incompetent due to mental disability, advanced age or physical infirmity. Its findings of incompetency must be supported by medical evidence or a court ruling. The VA then conducts a Field Examination and interviews you and asks for information about monthly bills, assets and medications.
You have the right to tell the SSA who you want to serve as your rep payee.
The SSA gives first preference to your family and friends. If none are available, then it will consider appointing a qualified organization.
Likewise, you have the right to tell the VA who you want to serve as your fiduciary. Before appointing that person, the VA conducts a background investigation that includes checking criminal records, personal credit and references. You or your proposed fiduciary must apply to the VA fiduciary program before the appointment will be approved. The VA can decline to appoint your fiduciary or qualified family member and can instead appoint a paid fiduciary.
If you do not like the SSA’s decision about your incapacity, then you have the right to try to prove that you can manage your money. You can do this by sending them a court order stating that you can take care of yourself, or a note from a doctor, or some other type of evidence.
If you don’t like the VA’s decision, then you can appeal to the U.S. Court of Veterans Appeals.
Both the rep payee and the VA fiduciary have to file an annual account showing use of the funds under their control.
The SSA program is at 42 USC Section 1383(a)(2). The VA program is at 38 USC Section 5502(a)(1). For helpful guides, see https://www.ssa.gov/pubs/EN-05-10076.pdf and https://www.benefits.va.gov/FIDUCIARY/Fid_Guide.pdf
Virginia Hammerle is a licensed Texas attorney. Her practice includes estate planning, litigation, guardianship and probate law. See hammerle.com for her blog and newsletter sign-up. This column does not constitute legal advice.
