TEXAS VETERANS COMMMISSION SPRING CONFERENCE 2008

1. TEXAS VETERANS COMMMISSIONSPRING CONFERENCE 2008 • Forms Accredited Service Officers Can and Cannot Sign • Claimants Signature by Mark or Thumbprint • Durable Powers of Attorney • Representation by Private Attorney

2. Objectives • Identify the different types of forms Accredited Service Officers can and cannot sign • What’s required if claimant’s signature is by mark or thumbprint • Durable Powers of Attorney • Representation by Private Attorney

3. Forms Accredited Service Officers Can and Cannot Sign • Notice of Disagreement (VAF 21-4138)(38 CFR §20.301) • Substantive Appeal (VA Form 9 (make sure form is most current) (38 CFR §20.301) • Withdraw an Appeal (VA Form 21-4138)(38 CFR §20.204) • Informal claims on behalf of claimant (38 CFR §3.155) • Increase (VA Form 21-4138) • Reopen(VA Form 21-4138) Can Sign

4. Forms Accredited Service Officers Can and Cannot Sign (Cont.) • Any formal or (original) application for benefits • Any forms requiring claimant certification (i.e.; Medical Expense Reports (VA Form 21-8416), Veterans Application For Increased Compensation Based On Unemployability (VA Form 21-8940), etc..) Cannot Sign

5. Claimants Signature by Mark or Thumbprint • A formal claim for VA benefits (Medical Expense Report, Original claim for compensation/pension (21-526)) signed by mark (X) or thumbprint is acceptable only if the mark or thumbprint appears with: • The signatures, legible names and addresses of two witnesses, or

6. Claimants Signature by Mark or Thumbprint (cont.) • The signature (with legible name and address) of one witness if the witness is identified as a Department of Veterans Affairs (VA) employee, a notary public, or an accredited agent, attorney, or service organization representative. • Any signature by mark or thumbprint not properly witnessed under these provisions is unacceptable and the formal claim will be returned as incomplete (M21-1MR, Part V, Subpart iii, Ch 7, Sec. B.8.b) (38 CFR §3.2130 )

7. Durable Powers of Attorney What is a durable power of attorney? • A "Durable" Power of Attorney enables the Agent to act for the Principal even after the Principal is not mentally competent or physically able to make decisions. The "Durable" Power of Attorney may be used immediately, and is effective until it is revoked by the Principal, or until the Principal's death.

8. Durable Powers of Attorney(cont.) When does a durable power of attorney take effect?  • A durable power of attorney can be drafted so that it goes into effect as soon as you sign it. That is appropriate if you face a serious operation or incapacitating illness. 

9. Durable Powers of Attorney • When you create and sign a power of attorney, you give another person legal authority to act on your behalf. • The person who is given this authority is called your "attorney-in-fact." The word "attorney" here means anyone authorized to act on another's behalf; it's most definitely not restricted to lawyers.

10. Durable Powers of Attorney(cont.) What does the attorney-in-fact do? • Commonly, people give an attorney-in-fact broad power over their finances. • But you can give your attorney-in-fact as much or as little power as you wish. You may want to give your attorney-in-fact authority to do some or all of the following:

11. Durable Powers of Attorney(cont.) • Use your assets to pay your everyday expenses and those of your family • Buy, sell, maintain, pay taxes on and mortgagereal estate and other property • Collect benefits from Social Security, Medicare or other, etc.

12. Durable Powers of Attorney(cont.) Whatever powers you give the attorney-in- fact, the attorney-in-fact must act in your best interests, keep accurate records, keep your property separate from his or hers and avoid conflicts of interest.

13. Durable Powers of Attorney(cont.) Can my attorney-in-fact make medical decisions on my behalf? No. A durable power of attorney for finances does not give your attorney-in-fact legal authority to make medical decisions for you.  You can, however, prepare a durable power of attorney for healthcare, a document that lets you choose someone to make medical decisions on your behalf if you can't.  In most states, you'll also want to write out your wishes in a "livingwill" (also called a Healthcare Directive or Directive to Physicians),which will tell your doctors your preferences about certain kinds of medical treatment and life-sustaining procedures if you can't communicate your wishes. If your living will is properly prepared, your doctors are legally bound to respect your wishes or to transfer you to a doctor who will. Most states now provide fill-in-the-blanks living will forms.

14. Durable Powers of Attorney(cont.) VHA Form 10-0137 used by the Veterans Health Administration (VHA) • This form lets you name the person you trust to make health care decisions for you if you can’t make them yourself—your “health care agent.” He or she will have the legal right to make health care decisions for you. You can choose any adult to be your agent. It’s best to choose someone you trust, who knows you well and who knows your values. You should make sure the person is willing to serve as your agent. If you don’t choose an agent, your doctor will choose someone to make decisions for you in the following order: legal guardian (if you have one), spouse, adult child, parent, sibling, grandparent, grandchild, or a close friend. Your health care team, or a court, will make decisions for you in accordance with VA policy if none of the above is available.

15. Durable Powers of Attorney(cont.) • Completed applications are kept in patients files at the VA facility providing care, and noted in Computerized Patient Record System (CPRS)

16. Representation by Private Attorney December 22, 2006, Public Law 109-461, the Veterans Benefits, Health Care and Information Technology Act of 2006 was signed into law. June 2007, the law became effective.

17. Representation by Private Attorney(cont.) The Act allows claimants to hire and pay an attorney or agent to assist in obtaining VA benefits after a notice of disagreement (NOD) has been filed. The new law amended 38 U.S.C. §§ 5902 5903, 5904 and 5905.

18. Representation by Private Attorney (cont.) Highlights of the new law include: • Attorney need only be a member in good standing of a State bar • As amended, Section 5904 allows accredited attorneys and agents to charge fees for services • Authorizes the VA Secretary to collect an assessment from an individual recognized as an agent or attorney under Section 5904 • Authorizes VA to regulate the qualifications and standards of conduct applicable to agents and attorneys • Authorizes VA to review fee agreements between agents or attorneys and the claimants and order a reduction in the fee if the Secretary finds the fee to be excessive or unreasonable

19. Representation by Private Attorney(cont.) • Subjects Veterans Service Organization representatives to suspension on the same grounds as apply to agents and attorneys

20. Representation by Private Attorney (cont.) • Adds four additional categories to the list of grounds for suspension or exclusion of agents or attorneys from further practice before the VA if • Presenting a frivolous claim, issue, or argument, involving conduct inconsistent with ethical standards for the practice of law • Suspension or disbarment by any court or bar to which the agent or attorney was previously admitted to practice, or disqualification from participating in or appearing before any Federal agency, if the agent or attorney has not been reinstated

21. Representation by Private Attorney (cont.) • Adds four additional categories to the list of grounds for suspension or exclusion of agents or attorneys from further practice before the VA (cont) • Charging excessive or unreasonable fees • Failing to comply with any other condition prescribed by the Secretary

22. Representation by Private Attorney(cont.) An attorney may represent a claimant if VA receives either: • VA Form 21-22a signed by the claimant, or • A written declaration that shows he/she is authorized to represent the claimant (5 U.S.C. 500(b)) (38 CFR §14.631(a))

23. Representation by Private Attorney(cont.) Forms required to represent veterans and Other claimants seeking VA benefits • VA Form 21-22a to appoint agent, attorney or individual as representative (38 CFR §14.631(a)) • VA Form 21-22 to appoint veterans service organization as representative (38 CFR § 14.629; Authority: 38 U.S.C. §§ 501(a), 5904)

24. Representation by Private Attorney (cont.) Scope of Representation • Can be limited. Example, an attorney or agent may only want to represent a claimant for one specific claim (Diabetes or Shrapnel Wound). See VA Fast Letter 07-15 (June 6, 2007) M21-1MR, Part I, 3.B.9.b

25. Representation by Private Attorney(cont.) When fees can be charged • Under new law, an accredited agent or attorney may charge fees for services after a notice of disagreement has been filed with respect to the case. Such notice of disagreement must have been filed on or after June 20, 2007

26. Representation by Private Attorney(cont.) Maximum Fee that Agent Or Attorney is Allowed to Charge • Basic rule is that an agent’s or attorney’s fees must be reasonable • Fees that do not exceed 20 percent of any past-due benefits are presumed to be reasonable

27. Representation by Private Attorney(cont.) Termination of Representation • Veterans and other claimants may terminate their agent’s or attorney’s representation at any time. However, the agent or attorney may still be entitled to a fee

28. Representation by Private Attorney(cont.) One-year Rule Eliminated • The new § 5904 eliminates the requirement that the attorney or agent is retained within one year from the date of Board’s first final decision in the case. Under the new legislation, there is on requirement that the attorney or agent be hired within a specified time frame

29. Summary • Types of forms that can and cannot be signed by an Accredited Service Officer • Required signatures needed when claimants signature was by mark or thumbprint • Durable Powers of Attorney, financial and medical • Public Law 109-461allowing representation by private attorney

30. Questions?