Yesterday, someone sent us a link to a post at Red Flag News about a letter that’s going out to some veterans in regards to the finding that they are not considered competent enough to handle their own financial affairs and that the VA reporting their names to the NICS system for background checks. I made a snap judgement yesterday by reading the overblown description of the letter by the blogger, who claims to be a lawyer, and guessed that the post was bullshit. Today he has posted the actual letter and here’s the relevant paragraph;
If a guy is to the point where he’s having problems with his finances, the VA (usually under a request from the family) will put a vet in for Guardianship. Again, this is *usually* but not always a request from the family. It wouldn’t be everyone with PTSD, not everyone even at 100%. But what it does is allows VA to pay the family, who in turn has to pay the guys/gals bills. Different things kick in then to ensure the money is appropriately spent. That also is fraught with trouble.
Now, at that time the vet can ask for a hearing, provide evidence, and do all the other happy Due Process stuff.
The change here is that this didn’t automatically send the names to NICS. And in my opinion is probably unconstitutional. The NICS statutes say that the person has to be a threat to himself or others. But the Guardianship thing in VA regs doesn’t say that, only that they are incompetent with regards to handling their money. For years we’ve kept the VA from reporting those names because of the differences. Seemingly they have changed that now. There is a bill to correct that.
For what it’s worth, Shinseki has said that the VA is not reporting those veterans to the NICS system, this seems to be a change in procedure. But the letter, despite the breathless reporting by this lawyer dude at the blog, explains to the veteran to whom the letter is addressed how to avoid being ruled incompetent.
By the way, I looked up the cite from 18 USC 942(a)(2) which merely refers to 18 USC 922(a)(6) which, in turn says you can’t lie when you buy a gun – so all of that legal crap doesn’t say anything we don’t know and it has nothing to do with being a mentally incapacitated veteran.
But, basically, what the letter doesn’t say is that the VA is disarming veterans arbitrarily. Don’t let this letter be the reason you don’t go to the VA to get the treatment you need and earned. I doubt very much that any of you are being supervised by a fiduciary, anyway. And I’m sure if one of you had got this letter, I would have had a copy by now.
By the way Tom Coburn and The American Legion is working to get the law changed. The article from 2007 shows that this issue is with the VA not with Obama since TAL has been fighting the law since pre-Obama days.
Like Jonn said, I’ve been involved in this issue for 10 years, so it’s not an “Obama thing.” This predates him even being elected to the Senate.
I don’t think I have ever done this, but I wanted to include a comment from Twitchy from “Gothguy.” I hope he doesn’t mind, but he said EVERYTHING that I would have said, and about 30 times more eloquently. PLEASE READ IT BEFORE HYPERVENTILATING.
Having dealt with this extensively when I was a Veterans Advocate, a little clarification is needed. This is not something new, and the VA is not in the gun grabbing business.
What he (the author) has written is misleading on a couple of points (actually, more than a couple). Not just ‘someone in the VA’ can declare a veteran incompetent, the veteran must be diagnosed by a doctor as incompetent during an examination. Once that has happened, the VA does a proposed decision, notifying the veteran of the proposed incompetency, and details with specifics the reason(s) why the proposal is being done. They don’t just get a letter, and it’s a done deal.
The veteran is given 60 days to submit medical evidence as to why the proposal should be overturned. It is a fact that during that 60 day period, the veteran cannot appeal the decision, because the decision hasn’t been finalized, it’s only a proposal or pending decision. Even if the veteran cannot get a letter or statement or other evidence during that time period and the proposal goes into effect, he or she can still appeal that decision, and the VA advises him or her of the appeal process.
I would advise the veteran to get in touch with their doctor and get a statement from him or her stating that the veteran is not incompetent, submit it to the VA, and the proposal would be rescinded.
Further, the author cites the 5th Amendment, well, again, it’s misleading the way he wrote this. The veteran is free to submit evidence, request a pre-determination hearing before being declared incompetent to handle his or her affairs, and trust me, I have participated in those hearing many times over 16 years, and have won virtually all of them prior to the final determination. No 5th Amendment rights are violated.
Also, the author again cites that some nameless person would be appointed by the VA to handle the veterans’ financial affairs. Not true. If the veteran is declared incompetent after all avenues have been exhausted, in virtually all cases, a family member is appointed, and the veteran can even request that a friend be appointed. The VA will interview these people to make sure they understand and agree to be appointed the fiduciary. The only time an outside fiduciary is appointed is if no family member or friend is willing to do it, and that person or agency the VA appoints have under gone extensive background checks, credit checks, etc., and have been approved by the VA.
The VA also has what is called the ‘Guardianship Unit’, which constantly monitors the fiduciaries to make sure they are doing what they are supposed to do.
Finally, the author attempts to make this appear widespread, and that is simply not the case. And, even if a veteran has been declared incompetent for years, he or she can always have that decision overturned…seen it…done it.
And trust me, there are some veterans that are so whacked out mentally, that even I wouldn’t want them to have access to a firearm.
As a disabled veteran, Patriot, and as an American, I am a huge advocate of the 2nd Amendment, but what the author wrote is simply scare mongering, and it does a disservice to veterans.
If anyone knows ANY VETERAN who has been adjudicated as incompetant to handle his fiduciary stuff, but who isn’t absolytely BATSHIT crazy (and/or) who hasn’t threatened to kill themselves or others, than contact us. Seriously. I looked for months and months, and never found one. I’d find someone who was almost perfect, and then we’d find out how he threatened to kill his mom or himself. If you know an actual person that shouldn’t have had this happen, JUST CONTACT US.
Category: Veterans' Affairs Department