VA awarded authority to appoint legal guardians for impaired veterans

An agreement between the Justice Department and the Department of Veterans Affairs allows the VA to put veterans under guardianship if they are unable to make their own health care decisions.

A memorandum of understanding announced last week by the department gives VA attorneys the legal authority to enter into state court guardianships or conservatorship proceedings in cases where veterans don’t have family or legal representation to determine medical treatment.

VA officials say the process will help hundreds of veterans hospitalized at VA facilities who are unable to transition to more appropriate settings.

“Our new partnership with the Justice Department reflects our ongoing commitment to ensuring that every veteran receives timely, appropriate care, even in complex cases,” VA Secretary Doug Collins said in a release.

VA officials said the agreement is aimed at helping roughly 700 veterans languishing in VA facilities, but the announcement, which noted that the agreement includes some veterans who are “either homeless or at risk of homelessness,” raised concerns among advocates that the authority could be applied to a larger population of veterans, such as those living on the streets.

Carl Blake, CEO of Paralyzed Veterans of America, said court-ordered guardianships or conservatorships could result in a veteran’s loss of rights or lead to unnecessary institutionalization.

Blake asked how the VA previously met the needs of incapacitated veterans and whether they would have access to their own legal representation — paid for by the VA — if necessary.

“Guardianship can severely — or permanently — restrict an individual’s autonomy, civil liberties, and access to community-based supports,” Blake said in a statement on March 13. “Veterans who have served our country deserve care that honors their dignity, preserves their rights, and supports their ability to live in the community with appropriate services.”

Under the program, VA attorneys can ask a state court to determine if a veteran needs a court-appointed guardian to “represent the veteran’s best interests” to determine appropriate medical care, VA Press Secretary Pete Kasperowicz said in an email to Military Times.

According to Kasperowicz, the decisions would be made with “full due-process and process rights for the veterans involved and continuous court supervision of the guardian,” and the court — not the VA — would appoint the representative.

Despite the VA’s assurances, California Rep. Mark Takano, the ranking Democrat on the House Veterans Affairs Committee, said the agreement puts VA in a position where it is responsible for a veteran’s well-being as well as the “legal driver of stripping veterans of their rights.”

“Guardianship should always be a last resort, after all less restrictive options have been exhausted, to ensure veterans’ rights are protected. Veterans fought for our freedom and theirs. The federal government should not be engineering ways of taking it away,” Takano said in a statement on March 11.

Kasperowicz said the agreement is not an effort to institutionalize veterans against their will. Instead, he said, it provides the VA an avenue for removing veterans already stuck in VA hospitals who could benefit from other settings.

“We are trying to get them in the most appropriate care setting for their needs,” he said.

Blake asked the VA and Justice Department to commit to transparency, allowing for public scrutiny and independent oversight to ensure that affected veterans do not lose their civil liberties.

“VA must carefully consider any broad use of guardianship as a care-planning shortcut and adopt policies with robust safeguards,” Blake said.