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Veteran’s Court issues Seminal Decision in Freeman v. Shinseki concerning the appointment of Fiduciaries for Incompetent Veterans

On April 26, 2011, the Court of Appeals for Veterans’ Claims issued a landmark decision in the case of Freeman v. Shinseki. A member of the F&P Veterans Service Group, argued this extremely important appeal that fundamentally changes the rights of mentally incompetent disabled veterans. The issue before the Court was essentially whether a mentally incompetent disabled veteran, or his family, has the right to question the VA’s choice of a fiduciary. Up to this point, the Veterans Administration’s policy was to unilaterally appoint a fiduciary of the VA ‘s choosing, often a paid fiduciary, who’s pay was then deducted from the disabled, incompetent veteran’s benefits. If the veteran or his family challenged the VA’s decision, the VA denied the appeal stating that the choice of the fiduciary was at the sole discretion of the Secretary of Veterans Affairs. The team of pro bono veteran’s attorneys submitted briefs and made oral arguments before the Court that the choice of a fiduciary by the VA was appealable to the Board of Veterans Appeals and to the Court of Appeals for Veterans Claims just like any other decision made by the VA. In a Unanimous decision the Veterans’ Court agreed that “the petitioner (veteran) is clearly and indisputably entitled to appeal to the Board the decision of the VSCM to appoint a paid fiduciary”. This is a tremendous victory not only for Mr. Freeman and other incompetent disabled veterans, but for all veterans as the holding points out once again that the VA is not above the law and is accountable to the people like every other branch of government.