cfr_sections
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25 rows where part_number = 13 and title_number = 38 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 38:38:1.0.1.1.15.0.159.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.10 Purpose and applicability of other regulations. | VA | (a) Purpose. The regulations in this part implement the Department of Veterans Affairs' (VA) fiduciary program, which is authorized by 38 U.S.C. chapters 55 and 61. The purpose of the fiduciary program is to protect certain VA beneficiaries who, as a result of injury, disease, or infirmities of advanced age, or by reason of being less than the age of majority, cannot manage their VA benefits. Under this program, VA oversees these vulnerable beneficiaries to ensure their well-being, and appoints and oversees fiduciaries who manage these beneficiaries' benefits. (b) Applicability of other regulations. Fiduciary matters arise after VA has determined that a beneficiary is entitled to benefits, and decisions on fiduciary matters are not decisions on claims for VA monetary benefits. Accordingly, VA's regulations governing the adjudication of claims for benefits, see 38 CFR part 3, do not apply to fiduciary matters unless VA has prescribed applicability in this part. | |||||||
| 38:38:1.0.1.1.15.0.159.10 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.140 Responsibilities of fiduciaries. | VA | Any individual or entity appointed by VA as a fiduciary to receive VA benefit payments on behalf of a beneficiary in the fiduciary program must fulfill certain responsibilities associated with the services of a fiduciary. These responsibilities include: (a) General. (1) Fiduciaries appointed by VA to manage the VA funds of a beneficiary are also responsible for monitoring the beneficiary's well-being and using available funds to ensure that the beneficiary's needs are met. Fiduciaries owe VA and beneficiaries the duties of good faith and candor and must administer a beneficiary's funds under management in accordance with paragraph (b) of this section. In all cases, the fiduciary must disburse or otherwise manage funds according to the best interests of the beneficiary and the beneficiary's dependents and in light of the beneficiary's unique circumstances, needs, desires, beliefs, and values. (2) The fiduciary must take all reasonable precautions to protect the beneficiary's private information contained in the fiduciary's paper and electronic records. (i) For purposes of this section: (A) Reasonable precautions means protecting against any unauthorized access to or use of the beneficiary's private information that may result in substantial harm or inconvenience to the beneficiary; and (B) Private information means a beneficiary's first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such beneficiary: VA claim number, Social Security number, date of birth, address, driver's license number or state-issued identification card number, or financial account number or credit card or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the beneficiary's account. (ii) At a minimum, fiduciaries must place reasonable restrictions upon access to paper records containing the beneficiary's private information, including storage of such re… | |||||||
| 38:38:1.0.1.1.15.0.159.11 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.200 Fiduciary accounts. | VA | Except as prescribed in paragraph (b) of this section, any fiduciary appointed by VA to receive payments on behalf of a beneficiary must deposit the beneficiary's VA benefits in a fiduciary account that meets the requirements prescribed in paragraph (a) of this section. (a) Separate accounts. Except as prescribed in paragraph (b) of this section, a fiduciary must establish and maintain a separate financial institution account for each VA beneficiary that the fiduciary serves. The fiduciary must not commingle a beneficiary's funds with the fiduciary's funds or any other beneficiary's funds, either upon or after receipt. The account must be: (1) Established for direct deposit of VA benefits, (2) Established in a Federally-insured financial institution, and in Federally-insured accounts when funds qualify for such deposit insurance, and (3) Titled in the beneficiary's and fiduciary's names and note the existence of the fiduciary relationship. (b) Exceptions. The general rule prescribed in paragraph (a) of this section regarding establishment and maintenance of separate accounts does not apply to the following fiduciaries: (1) The beneficiary's spouse; (2) State or local Government entities; (3) Institutions, such as public or private medical care facilities, nursing homes, or other residential care facilities, when an annual accounting is not required. See § 13.280 regarding accounting requirements; or (4) A trust company or a bank with trust powers organized under the laws of the United States or a state. | |||||||
| 38:38:1.0.1.1.15.0.159.12 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.210 Fiduciary investments. | VA | (a) General. A fiduciary must conserve or invest any VA benefits that the fiduciary receives on behalf of a beneficiary, whether such benefits are in the form of recurring monthly payments or a one-time payment, if the beneficiary or the beneficiary's dependents do not need the benefits for current maintenance, reasonably foreseeable expenses, or reasonable improvements in the beneficiary's and the beneficiary's dependents' standard of living. Conservation of beneficiary funds is for the purpose of addressing unforeseen circumstances or planning for future care needs given the beneficiary's disabilities, circumstances, and eligibility for care furnished by the Government at Government expense. Fiduciaries should not conserve VA benefit funds under management for a beneficiary based primarily upon the interests of the beneficiary's heirs or according to the fiduciary's own values, preferences, and interests. (b) Types of investments. An investment must be prudent and in the best interest of the beneficiary. Authorized investments include United States savings bonds or interest or dividend-paying accounts insured under Federal law. Any such investment must be clearly titled in the beneficiary's and fiduciary's names and identify the fiduciary relationship. (c) Exceptions. The general rules regarding investment of VA benefits do not apply to the following fiduciaries: (1) The beneficiary's spouse, and (2) The chief officer of an institution in which the beneficiary is being furnished hospital treatment or institutional, nursing, or domiciliary care. VA benefits paid to the chief officer may not be invested. | |||||||
| 38:38:1.0.1.1.15.0.159.13 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.220 Fiduciary fees. | VA | (a) Authority. The Hub Manager with jurisdiction over a fiduciary appointment may determine whether a fee is necessary to obtain the services of a fiduciary. A fee is necessary only if no other person or entity is qualified and willing to serve without a fee and the beneficiary's interests would be served by the appointment of a qualified paid fiduciary. The Hub Manager will not authorize a fee if the fiduciary: (1) Is a spouse, dependent, or other relative of the beneficiary; or (2) Will receive any other form of payment in connection with providing fiduciary services for the beneficiary. (b) Limitation on fees. The Hub Manager will authorize a fiduciary to whom a fee is payable under paragraph (a) of this section to deduct from the beneficiary's account a reasonable monthly fee for fiduciary services rendered. (1) For purposes of this section, reasonable monthly fee means a monetary amount that is authorized by the Hub Manager and does not exceed 4 percent of the monthly VA benefit paid to the fiduciary on behalf of the beneficiary for a month in which the fiduciary is eligible under paragraph (b)(2) of this section to collect a fee. (2) A monthly fee may be collected for any month during which the fiduciary: (i) Provides fiduciary services on behalf of the beneficiary, (ii) Receives a recurring VA benefit payment for the beneficiary, and (iii) Is authorized by the Hub Manager to receive a fee for fiduciary services. (3) Fees may not be computed based upon: (i) Any one-time, retroactive, or lump-sum payment made to the fiduciary on behalf of the beneficiary; (ii) Any funds conserved by the fiduciary for the beneficiary in the beneficiary's account under § 13.200 or invested by the fiduciary for the beneficiary under § 13.210, to include any interest income and return on investment derived from any account; or (iii) Any funds transferred to the fiduciary by a prior fiduciary for the beneficiary, or from the personal funds of patients or any other source. (4) The Hub Manager will not authorize … | |||||||
| 38:38:1.0.1.1.15.0.159.14 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.230 Protection of beneficiary funds. | VA | [83 FR 32738, July 13, 2018, as amended at 87 FR 29673, May 16, 2022] | (a) General. Except as prescribed in paragraph (c) of this section, within 60 days of appointment, the fiduciary must furnish to the fiduciary hub with jurisdiction a corporate surety bond that is conditioned upon faithful discharge of all of the responsibilities of a fiduciary prescribed in § 13.140 and meets the requirements of paragraph (d) of this section, if the VA benefit funds that are due and to be paid for the beneficiary will exceed $25,000 at the time of appointment. The Hub Manager will not authorize the release of a retroactive, one-time, or other pending lump-sum benefit payment to the fiduciary until the fiduciary has furnished the bond prescribed by this section. (b) Accumulated funds. The provisions of paragraph (a) of this section, which require a fiduciary to furnish a surety bond, apply in any case in which the accumulation over time of VA benefit funds under management by a fiduciary for a beneficiary exceeds $25,000. Except as prescribed in paragraph (c) of this section, within 60 days of accumulated funds exceeding the prescribed threshold, the fiduciary will furnish to the fiduciary hub a bond that meets the requirements of paragraph (d) of this section. (c) Exceptions. (1) The provisions of paragraphs (a) and (b) of this section do not apply to: (i) A fiduciary that is a trust company or a bank with trust powers organized under the laws of the United States or a state; (ii) A fiduciary who is the beneficiary's spouse; (iii) A fiduciary in the Commonwealth of Puerto Rico, Guam, or another territory of the United States, or in the Republic of the Philippines, who has entered into a restricted withdrawal agreement in lieu of a surety bond; (iv) A fiduciary that is also appointed by a court and has obtained a state-court bond, as referenced in 38 CFR 14.709, sufficient to cover both VA and non-VA funds; or (v) A fiduciary that is also a state agency with existing, state-mandated liability insurance or a blanket bond sufficient to cover both VA and non-VA funds. (2) The Hub Manag… | ||||||
| 38:38:1.0.1.1.15.0.159.15 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.240 Funds of beneficiaries less than the age of majority. | VA | (a) General. Except as prescribed in paragraph (b) of this section, a fiduciary who receives VA benefits on behalf of a beneficiary who is less than the age of majority may use the benefits only for the use and benefit of that beneficiary and only if the fiduciary first determines that the person or persons who have custody of the beneficiary and are responsible for the beneficiary's needs are unable to provide for those needs. (b) Education benefits. A fiduciary who receives VA education benefits on behalf of a beneficiary who is less than the age of majority may use the benefits for the beneficiary's education regardless of the ability of the person or persons who have custody of the beneficiary to pay for the beneficiary's education. | |||||||
| 38:38:1.0.1.1.15.0.159.16 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.250 Funds of deceased beneficiaries. | VA | (a) General. When a beneficiary who has a fiduciary dies without leaving a valid will and without heirs, all VA benefit funds under management by the fiduciary for the deceased beneficiary on the date of death, less any deductions authorized by paragraph (c) of this section, must be returned to VA if such funds would escheat to a state. (b) Accountings. Upon the death of a beneficiary described in paragraph (a) for whom the fiduciary must return to VA all benefit funds under management, less any deductions authorized under paragraph (c) of this section, or upon the death of any beneficiary for whom a fiduciary was required to submit an annual accounting to VA under § 13.280, the fiduciary must submit a final accounting to the fiduciary hub with jurisdiction within 90 days of the beneficiary's death. (c) Expenses. The fiduciary may deduct a reasonable fee from the deceased beneficiary's account for purposes of determining whether the beneficiary's funds under management would escheat to a state under state law or whether the deceased beneficiary left a valid will or is survived by heirs. For the purpose of this section, reasonable fee means an amount customarily charged by attorneys or other professionals authorized to do such work in the state where the deceased beneficiary had his or her permanent place of residence. (d) Estate matters. Upon the death of a beneficiary who has a valid will or heirs, the fiduciary must hold the remaining funds under management in trust for the deceased beneficiary's estate until the will is probated or heirs are ascertained, and disburse the funds according to applicable state law. | |||||||
| 38:38:1.0.1.1.15.0.159.17 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.260 Personal funds of patients. | VA | (a) Distribution of funds. Benefits deposited by VA in the personal funds of patients account for a veteran who was rated by VA as being unable to manage his or her VA benefits and who died leaving an account balance are payable to an eligible person. For purposes of this section, eligible person means an individual living at the time the account balance is distributed in the following order of preference: (1) The deceased veteran's spouse, as defined by § 3.1000(d)(1) of this chapter; (2) The veteran's children (in equal shares), as defined by § 3.57 of this chapter, but without regard to age or marital status; or (3) The veteran's dependent parents (in equal shares) or surviving parent, as defined by § 3.59 of this chapter, provided that the parents were or parent was dependent within the meaning of § 3.250 of this chapter on the date of the veteran's death. (4) Any balance remaining in the personal funds of patients account that cannot be distributed in accordance with paragraphs (a)(1) through (3) of this section will be used by VA to reimburse anyone who bore the expense of the veteran's last sickness or burial or will be deposited to the credit of the applicable current VA appropriation. (b) Application. A person who seeks distribution of a deceased veteran's funds from the personal funds of patients account under paragraph (a) of this section must file an application with VA not later than 5 years after the veteran's death. If any person who seeks such distribution is under a legal disability that prevents him or her from filing an application at the time of the veteran's death, the 5-year period will run from the date of termination or removal of the legal disability. | |||||||
| 38:38:1.0.1.1.15.0.159.18 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.270 Creditors' claims. | VA | Under 38 U.S.C. 5301(a)(1), VA benefit payments are exempt, both before and after receipt by the beneficiary, from the claims of creditors and taxation. The fiduciary should invoke this defense in applicable circumstances. If the fiduciary does not do so, the Hub Manager may refer the matter to the District Counsel for evaluation and appropriate legal action. | |||||||
| 38:38:1.0.1.1.15.0.159.19 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.280 Accountings. | VA | (a) General. Except as prescribed in paragraph (d) of this section, a fiduciary for a beneficiary must submit to the fiduciary hub with jurisdiction an annual accounting regarding the VA benefit funds under management by the fiduciary for the beneficiary if: (1) The amount of VA benefit funds under management for the beneficiary exceeds $10,000; (2) The fiduciary deducts a fee authorized under § 13.220 from the beneficiary's account; (3) The beneficiary is being paid VA compensation benefits at a total disability rating (100 percent), whether schedular, extra-schedular, or based on individual unemployability; or (4) The Hub Manager determines an accounting is necessary to ensure the fiduciary has properly managed the beneficiary's funds. (b) Scope of accounting. For purposes of this section, accounting means the fiduciary's written report regarding the income and funds under management by the fiduciary for the beneficiary during the accounting period prescribed by the Hub Manager. The accounting prescribed by this section pertains to all activity in the beneficiary's accounts, regardless of the source of funds maintained in those accounts. An accounting consists of: (1) A beginning inventory or account balance, (2) An itemization of income, (3) An itemization of expenses, (4) An ending inventory or account balance, (5) Copies of financial institution documents reflecting receipts, expenditures, and beginning and ending balances, and (6) Receipts, when required by the Hub Manager. (c) Submission requirements. Fiduciaries must submit annual accountings to the fiduciary hub as follows: (1) The fiduciary must submit accountings on the appropriate VA form not later than 30 days after the end of the accounting period prescribed by the Hub Manager. (2) The fiduciary must submit a corrected or supplemental accounting not later than 14 days after the date of VA notice of an accounting discrepancy. (d) Exceptions. The provisions of this section that generally require the submission of an annual acc… | |||||||
| 38:38:1.0.1.1.15.0.159.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.20 Definitions. | VA | The following definitions apply to this part: Dependent means a beneficiary's spouse as defined by this section, a beneficiary's child as defined by § 3.57 of this chapter, or a beneficiary's parent as defined by § 3.59 of this chapter, who does not have an income sufficient for reasonable maintenance and who obtains support for such maintenance from the beneficiary. Fiduciary means an individual or entity appointed by VA to receive VA benefits on behalf of a beneficiary for the use and benefit of the beneficiary and the beneficiary's dependents. Hub Manager means the individual who has authority to oversee the activities of a VA Fiduciary Hub or the Veterans Service Center Manager of the Manila, Philippines, VA Regional Office. In the fiduciary program means, with respect to a beneficiary, that the beneficiary: (1) Has been rated by VA as incapable of managing his or her own VA benefits as a result of injury, disease, or the infirmities of advanced age; (2) Has been determined by a court with jurisdiction as being unable to manage his or her own financial affairs; or (3) Is less than the age of majority. Rating authority means VA employees who have authority under § 3.353 of this chapter to determine whether a beneficiary can manage his or her VA benefits. Relative means a person who is an adopted child or is related to a beneficiary by blood or marriage, as defined by this chapter. Restricted withdrawal agreement means a written contract between VA, a fiduciary, and a financial institution in which the fiduciary has VA benefit funds under management for a beneficiary, under which certain funds cannot be withdrawn without the consent of the Hub Manager. Spouse means a husband or wife whose marriage, including common law marriage and same-sex marriage, meets the requirements of 38 U.S.C. 103(c). VA benefit funds under management means the combined value of the VA funds maintained in a fiduciary account or accounts managed by a fiduciary for a beneficiary under § 13.200 and any VA funds invest… | |||||||
| 38:38:1.0.1.1.15.0.159.20 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.300 Onsite reviews. | VA | (a) Periodic onsite reviews. (1) The Hub Manager will conduct a periodic, scheduled, onsite review of any fiduciary in the United States, whether the fiduciary is an individual or an entity, if: (i) The fiduciary serves 20 or more beneficiaries, and (ii) The total annual amount of recurring VA benefits paid to the fiduciary for such beneficiaries exceeds the threshold established in 38 U.S.C. 5508 as adjusted by VA under 38 U.S.C. 5312. (2) The Hub Manager must complete at least one periodic onsite review triennially if the fiduciary meets the requirements of paragraph (a)(1) of this section. (3) VA will provide the fiduciary with written notice of the periodic onsite review at least 30 days before the scheduled review date. The notice will: (i) Inform the fiduciary of the pending review and the fiduciary's obligation under this part to cooperate in the onsite review process, and (ii) Request that the fiduciary make available for review all relevant records, including but not limited to case files, bank statements, accountings, ledgers, check registers, receipts, bills, and any other items necessary to determine that the fiduciary has been acting in the best interest of VA beneficiaries and meeting the responsibilities of fiduciaries prescribed in § 13.140. (b) Unscheduled onsite reviews. The Hub Manager may conduct unscheduled onsite reviews of any fiduciary, regardless of the number of beneficiaries served by the fiduciary or the total amount of VA benefit funds under management by the fiduciary, if: (1) VA receives from any source credible information that the fiduciary has misused or is misusing VA benefits; (2) The fiduciary's annual accounting is seriously delinquent. For purposes of this section, seriously delinquent means the fiduciary failed to submit the required accounting within 120 days after the ending date of the annual accounting period; (3) VA receives from any source credible information that the fiduciary is not adequately performing the responsibilities of a fiduciary prescribe… | |||||||
| 38:38:1.0.1.1.15.0.159.21 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.400 Misuse of benefits. | VA | (a) Definition of misuse. Misuse of benefits by a fiduciary occurs in any case in which the fiduciary receives payment of benefits for the use and benefit of a beneficiary and the beneficiary's dependents, if any, and uses any part of such payment for a use other than the use and benefit of the beneficiary or the beneficiary's dependents. For the purpose of this section, use and benefit means any expenditure reasonably intended for the care, support, or maintenance of the beneficiary or the beneficiary's dependents. Such expenditures may include the fiduciary's efforts to improve the beneficiary's standard of living under rules prescribed in this part. (b) Misuse determinations. Upon receipt of information from any source regarding possible misuse of VA benefits by a fiduciary, the Hub Manager may, upon his or her discretion, investigate the matter and issue a misuse determination in writing. This decision will: (1) Identify the beneficiary, (2) Identify the fiduciary, (3) State whether the fiduciary is an individual fiduciary serving 10 or more beneficiaries or a corporation or other entity serving one or more beneficiaries, (4) Identify the source of the information, (5) Describe in detail the facts found as a result of the investigation, (6) State the reasons for the Hub Manager's determination regarding whether the fiduciary misused any part of the beneficiary's benefit paid to the fiduciary, and (7) If the Hub Manager determines that the fiduciary did misuse any part of the beneficiary's benefit, identify the months in which such misuse occurred. (c) Notice. The Hub Manager will provide written notice of the misuse determination prescribed in paragraph (b) of this section, including a copy of the Hub Manager's written decision, an explanation regarding the reconsideration procedure prescribed in paragraph (d) of this section, and the beneficiary's right to appeal under § 13.600, to: (1) The fiduciary; (2) The beneficiary or the beneficiary's legal guardian, and the beneficiary's accredited… | |||||||
| 38:38:1.0.1.1.15.0.159.22 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.410 Reissuance and recoupment of misused benefits. | VA | (a) General. (1) If the Hub Manager or the Regional Office Director upon reconsideration determines that a fiduciary described in paragraph (a)(2) of this section misused any part of a beneficiary's benefit paid to the fiduciary, the Regional Office Director will reissue benefits to the beneficiary's successor fiduciary in an amount equal to the amount of funds misused. (2) This paragraph (a) applies to a fiduciary that is: (i) An individual who served 10 or more beneficiaries during any month in which misuse occurred; or (ii) A corporation or other entity serving one or more beneficiaries. (b) Negligence. In any case in which the Hub Manager or the Regional Office Director upon reconsideration determines that an individual fiduciary who served fewer than 10 beneficiaries during any month in which misuse occurred misused a beneficiary's funds under management by the fiduciary, the Hub Manager will refer the matter to the Director, Pension and Fiduciary Service, for a determination of whether VA negligence caused the misuse. The Regional Office Director will reissue benefits to the beneficiary's successor fiduciary in an amount equal to the amount of funds misused if the Director of the Pension and Fiduciary Service determines that VA negligence caused the misuse. The Pension and Fiduciary Service Director's negligence determination will be based upon a review of the VA information of record as of the date of the Hub Manager's or Regional Office Director's misuse determination. For purposes of this section, VA negligence causes misuse when: (1) The Hub Manager failed to properly investigate or monitor the fiduciary; for example, when: (i) The Hub Manager failed to review the fiduciary's accounting within 60 days after the date on which the accounting was scheduled for review. The date that an accounting is scheduled for review is the date the fiduciary hub receives the accounting; (ii) The Hub Manager did not decide whether to investigate an allegation of misuse within 60 days of receipt of the allegati… | |||||||
| 38:38:1.0.1.1.15.0.159.23 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.500 Removal of fiduciaries. | VA | (a) The Hub Manager may remove a fiduciary if the Hub Manager determines that fiduciary services are no longer required for a beneficiary or removal is in the beneficiary's interest. Reasons for removal include, but are not limited to: (1) Beneficiary reasons. (i) A VA rating authority determines that the beneficiary can manage his or her own VA benefits without VA supervision or appointment of a fiduciary; (ii) The beneficiary requests appointment of a successor fiduciary under § 13.100; (iii) The beneficiary requests supervised direct payment of benefits under § 13.110; or (iv) The beneficiary dies. (2) Fiduciary reasons. (i) The fiduciary's further service is barred under § 13.130; (ii) The fiduciary fails to maintain his or her qualifications or does not adequately perform the responsibilities of a fiduciary prescribed in § 13.140; (iii) The fiduciary fails to timely submit a complete accounting as prescribed in § 13.280; (iv) VA or a court with jurisdiction determines that the fiduciary misused or misappropriated VA benefits; (v) The fiduciary fails to respond to a VA request for information within 30 days after such request is made, unless the Hub Manager grants an extension based upon good cause shown by the fiduciary; (vi) The fiduciary is unable or unwilling to provide the surety bond prescribed by § 13.230 or, if applicable, enter into a restricted withdrawal agreement; (vii) The fiduciary no longer meets the requirements for appointment under § 13.100; or (viii) The fiduciary is unable or unwilling to manage the beneficiary's benefit payments, accounts, or investments. (b) Procedures. (1) If the Hub Manager determines that it is necessary to remove a fiduciary and appoint a successor fiduciary, the Hub Manager will: (i) Provide the fiduciary and the beneficiary written notice of the removal; and (ii) Instruct the fiduciary regarding the fiduciary's responsibilities prior to transfer of funds to a successor fiduciary or provide other instructions to the fiduciary. (2) The fiduciary… | |||||||
| 38:38:1.0.1.1.15.0.159.24 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.510 Fiduciary withdrawals. | VA | (a) General. A fiduciary may not withdraw as fiduciary for a beneficiary until the fiduciary receives notice from the Hub Manager regarding transfer of the beneficiary's funds to a successor fiduciary. (b) Voluntary withdrawal. (1) Subject to the limitation prescribed in paragraph (a) of this section, a fiduciary who has VA benefit funds under management for a beneficiary may withdraw from the fiduciary relationship with the beneficiary at any time if the fiduciary: (i) Provides the fiduciary hub with jurisdiction written notice of the fiduciary's intent to withdraw as fiduciary for the beneficiary; (ii) Describes the reasons for withdrawal; (iii) Continues as fiduciary for the beneficiary until the Hub Manager provides the fiduciary with the name and address of the successor fiduciary and instructions regarding the transfer of funds to the successor fiduciary; and (iv) Not later than 30 days after transferring funds to the successor fiduciary or as otherwise instructed by the Hub Manager, provides the fiduciary hub with jurisdiction a final accounting. (2) Upon receipt of the notice of intent to withdraw prescribed in paragraph (b)(1)(i) of this section, the Hub Manager will make a reasonable effort under the circumstances to expedite the appointment of a successor fiduciary. In determining the extent to which the fiduciary hub must expedite the appointment of a successor fiduciary, the Hub Manager will consider: (i) The reasons for the withdrawal request provided under paragraph (b)(1)(ii) of this section; (ii) The number of beneficiaries affected; (iii) The relationship between the affected beneficiary or beneficiaries and the fiduciary; and (iv) Whether expedited appointment of a successor fiduciary is necessary to protect the interests of the beneficiary or beneficiaries. (c) Notice. If a fiduciary requests to withdraw from service for a beneficiary, the Hub Manager will provide the beneficiary or the beneficiary's legal guardian, and the beneficiary's accredited representative, attorney, or… | |||||||
| 38:38:1.0.1.1.15.0.159.25 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.600 Appeals. | VA | Except as prescribed in paragraph (a) of this section, VA decisions regarding fiduciary matters are committed to the Secretary of Veterans Affairs' discretion by law, as delegated to subordinate officials under this part, and cannot be appealed to the Board of Veterans' Appeals or any court. (a) Appealable decisions. A beneficiary may appeal to the Board of Veterans' Appeals the following decisions: (1) The Hub Manager's appointment of a fiduciary under § 13.100; (2) The Hub Manager's removal of a fiduciary under § 13.500; (3) The Hub Manager's misuse determination under § 13.400; (4) The VA Regional Office Director's final decision upon reconsideration of a misuse determination under § 13.400(d); and (5) The Director of the Pension and Fiduciary Service's negligence determination for purposes of reissuance of benefits under § 13.410. (b) Procedures. (1) VA decisions regarding fiduciary matters are final, subject only to the right of appeal prescribed in this section. (2) The initiation and processing of appeals under this section are governed by parts 19 and 20 of this chapter. | |||||||
| 38:38:1.0.1.1.15.0.159.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.30 Beneficiary rights. | VA | Except as prescribed in this part, a beneficiary in the fiduciary program is entitled to the same rights afforded any other VA beneficiary. (a) General policy. Generally, a beneficiary has the right to manage his or her own VA benefits. However, due to a beneficiary's injury, disease, or infirmities of advanced age or by reason of being less than the age of majority, VA may determine that the beneficiary is unable to manage his or her benefits without VA supervision or the assistance of a fiduciary. Or a court with jurisdiction might determine that a beneficiary is unable to manage his or her financial affairs. Under any of these circumstances, VA will apply the provisions of this part to ensure that VA benefits are being used to maintain the well-being of the beneficiary and the beneficiary's dependents. (b) Specific rights. The rights of beneficiaries in the fiduciary program include, but are not limited to, the right to: (1) Receive direct payment of recurring monthly benefits until VA appoints a fiduciary if the beneficiary reaches the age of majority or older; (2) Receive written notice regarding VA's appointment of a fiduciary or any other decision on a fiduciary matter that affects VA's provision of benefits to the beneficiary; (3) Appeal to the Board of Veterans' Appeals VA's appointment of a fiduciary; (4) Be informed of the fiduciary's name, telephone number, mailing address, and email address; (5) Contact his or her fiduciary and request a disbursement of funds for current or foreseeable needs or consideration for payment of previously incurred expenses, account balance information, or other information or assistance consistent with the responsibilities of the fiduciary prescribed in § 13.140; (6) Obtain from his or her fiduciary a copy of the fiduciary's VA-approved annual accounting; (7) Have VA reissue benefits misused by a fiduciary if VA is negligent in appointing or overseeing the fiduciary or if the fiduciary who misused the benefits meets the criteria prescribed in § 13.410; (8) A… | |||||||
| 38:38:1.0.1.1.15.0.159.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.40 Representation of beneficiaries in the fiduciary program. | VA | The provisions of 38 CFR 14.626 through 14.629 and 14.631 through 14.637 regarding accreditation and representation of VA claimants and beneficiaries in proceedings before VA are applicable to representation of beneficiaries before VA in fiduciary matters governed by this part. (a) Accreditation. Only VA-accredited attorneys, claims agents, and accredited representatives of VA-recognized veterans service organizations who have complied with the power-of-attorney requirements in § 14.631 of this chapter may represent beneficiaries before VA in fiduciary matters. (b) Standards of conduct. Accredited individuals who represent beneficiaries in fiduciary matters must comply with the general and specific standards of conduct prescribed in § 14.632(a) through (c) of this chapter, and attorneys must also comply with the standards prescribed in § 14.632(d). For purposes of this section: (1) A fiduciary matter is not a claim for VA benefits. However, the term claimant in § 14.632 of this chapter includes VA beneficiaries who are in the fiduciary program, and the term claim in § 14.632 includes a fiduciary matter that is pending before VA. (2) The provisions of § 14.632(c)(7) through (9) of this chapter mean that an accredited individual representing a beneficiary in a fiduciary matter may not: (i) Delay or refuse to cooperate in the processing of a fiduciary appointment or any other fiduciary matter, including but not limited to a field examination prescribed by § 13.120 and the investigation of a proposed fiduciary prescribed by § 13.100; (ii) Mislead, threaten, coerce, or deceive a beneficiary in the fiduciary program or a proposed or current fiduciary regarding payment of benefits or the rights of beneficiaries in the fiduciary program; or (iii) Engage in, or counsel or advise a beneficiary or proposed or current fiduciary to engage in, acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA. (3) The Hub Manager will submit a written report regarding an allege… | |||||||
| 38:38:1.0.1.1.15.0.159.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.50 Suspension of benefits. | VA | (a) Notwithstanding the beneficiary rights prescribed in § 13.30, the Hub Manager will temporarily suspend payment of benefits and hold such benefits in the U.S. Treasury to the credit of the beneficiary or take other action that the Hub Manager deems appropriate to prevent exploitation of VA benefit funds or to ensure that the beneficiary's needs are being met, if: (1) The beneficiary or the beneficiary's attorney, claims agent, or representative withholds cooperation in any of the appointment and oversight procedures prescribed in this part; or (2) VA removes the beneficiary's fiduciary for any reason prescribed in § 13.500(b) and is unable to appoint a successor fiduciary before the beneficiary has an immediate need for disbursement of funds. (b) All or any part of the funds held in the U.S. Treasury to the beneficiary's credit under paragraph (a) of this section will be disbursed under the order and in the discretion of the VA Regional Office Director who has jurisdiction over the fiduciary hub or regional office for the benefit of the beneficiary or the beneficiary's dependents. | |||||||
| 38:38:1.0.1.1.15.0.159.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.100 Fiduciary appointments. | VA | (a) Authority. Except as prescribed in paragraph (b) of this section, the Hub Manager will appoint a fiduciary for a beneficiary who: (1) Has been rated by VA as being unable to manage his or her VA benefits, (2) Has been determined by a court with jurisdiction as being unable to manage his or her financial affairs, or (3) Has not reached age of majority. (b) Exceptions. The Hub Manager will not appoint a fiduciary for a beneficiary who: (1) Is eligible for supervised direct payment under § 13.110, or (2) Is not a beneficiary described in paragraph (a)(1) or (a)(2) of this section and has not reached age of majority, but (i) Is serving in the Armed Forces of the United States, or (ii) Has been discharged from service in the Armed Forces of the United States, or (iii) Qualifies for survivors' benefits as a surviving spouse. (c) Retroactive benefit payments. The Hub Manager will withhold any retroactive, one-time, or other lump-sum benefit payment awarded to a beneficiary described in paragraph (a) of this section until the Hub Manager has appointed a fiduciary for the beneficiary and, if applicable, the fiduciary has obtained a surety bond under § 13.230. (d) Initial appointment. In appointing a fiduciary, the Hub Manager will make every effort to appoint the person, agency, organization, or institution that will best serve the interest of the beneficiary. The Hub Manager will consider the results of a field examination, which will include a face-to-face meeting with the beneficiary and the beneficiary's dependents at their residence when practicable, and will conduct the investigation prescribed in paragraph (f) of this section. The Hub Manager will also consider whether: (1) VA benefits can be paid directly to the beneficiary with limited and temporary supervision by VA, as prescribed in § 13.110; (2) The circumstances require appointment of a temporary fiduciary under paragraph (h) of this section; and (3) The proposed fiduciary is complying with the responsibilities of a fiduciary prescri… | |||||||
| 38:38:1.0.1.1.15.0.159.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.110 Supervised direct payment. | VA | (a) Authority. The Hub Manager may authorize the payment of VA benefits directly to an adult beneficiary in the fiduciary program who has reached the age of majority if the Hub Manager determines, based upon a field examination, that the beneficiary can manage his or her VA benefits with limited and temporary VA supervision. In making this determination, the Hub Manager will consider: (1) Whether the beneficiary is aware of his or her monthly income; (2) Whether the beneficiary is aware of his or her fixed monthly expenses such as rent, mortgage, utilities, clothing, food, and medical bills; (3) The beneficiary's ability to: (i) Allocate appropriate funds to fixed monthly expenses and discretionary items; (ii) Pay monthly bills in a timely manner; and (iii) Conserve excess funds; and (4) Any other information that demonstrates the beneficiary's actual ability to manage his or her VA benefits with limited VA supervision. (b) Supervision. The limited and temporary supervision of beneficiaries receiving direct payment under paragraph (a) of this section will consist of: (1) Assistance in the development of a budget regarding the beneficiary's income and expenses, (2) Assistance with creating a fund usage report to aid the beneficiary in tracking his or her income and expenses, and (3) Periodic reviews of the beneficiary's fund usage report, as required by the Hub Manager. (c) Reassessment. The Hub Manager will reassess the beneficiary's ability to manage his or her VA benefits at or before the end of the first 12-month period of supervision. Based upon a field examination, an evaluation of the factors listed in paragraph (a) of this section, and the results of the supervision prescribed in paragraph (b) of this section, the Hub Manager will determine whether the beneficiary can manage his or her benefits without VA supervision. (1) If the beneficiary demonstrates the ability to manage his or her VA benefits without supervision, the Hub Manager will prepare a report that summarizes the findings and… | |||||||
| 38:38:1.0.1.1.15.0.159.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.120 Field examinations. | VA | (a) Authority. The Hub Manager will order a field examination regarding fiduciary matters within the Hub Manager's jurisdiction for any of the reasons prescribed in paragraph (c) of this section. For purposes of this section, field examination means the inquiry, investigation, or monitoring activity conducted by designated fiduciary hub or other qualified VA personnel who are authorized to: (1) Interview beneficiaries, dependents, and other interested persons regarding fiduciary matters; (2) Interview proposed fiduciaries and current fiduciaries regarding their qualifications, performance, or compliance with VA regulations; (3) Conduct investigations and examine witnesses regarding any fiduciary matter; (4) Take affidavits; (5) Administer oaths and affirmations; (6) Certify copies of public or private documents; and (7) Aid claimants and beneficiaries in the preparation of claims for VA benefits or other fiduciary or claim-related material. (b) Scope of field examinations. Field examinations may include, but are not limited to: (1) Assessing a beneficiary's and the beneficiary's dependents' welfare and physical and mental well-being, environmental and social conditions, and overall financial situation, based upon visiting the beneficiary's current residence and conducting a face-to-face interview of the beneficiary and the beneficiary's dependents, when practicable; (i) The Hub Manager will waive the requirements of paragraph (b)(1) of this section if the Veterans Health Administration (VHA) has approved the fiduciary as the beneficiary's family caregiver, and VHA's status report regarding the beneficiary indicates the beneficiary is in an excellent situation. (ii) The provisions of paragraph (b)(1)(i) of this section do not apply when the Hub Manager has information that a fiduciary, who is also the beneficiary's VHA-designated family caregiver, is misusing a beneficiary's VA funds under management, is neglecting a beneficiary, or has failed to comply with the requirements of § 13.140, or there … | |||||||
| 38:38:1.0.1.1.15.0.159.9 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 13 | PART 13—FIDUCIARY ACTIVITIES | § 13.130 Bars to serving as a fiduciary. | VA | (a) An individual or entity may not serve as a fiduciary for a VA beneficiary if the individual or entity: (1) Misused or misappropriated a beneficiary's VA benefits while serving as the beneficiary's fiduciary; (2) Has been convicted of a felony offense. For purposes of this paragraph, felony offense means a criminal offense for which the minimum period of imprisonment is 1 year or more, regardless of the actual sentence imposed or the actual time served. However, such conviction is not a bar to serving as a fiduciary for a beneficiary if all of the following conditions are met: (i) The conviction occurred more than 10 years preceding the proposed date of appointment; (ii) The conviction did not involve any of the following offenses: (A) Fraud; (B) Theft; (C) Bribery; (D) Embezzlement; (E) Identity theft; (F) Money laundering; (G) Forgery; (H) The abuse of or neglect of another person; or (I) Any other financial crime; (iii) There is no other person or entity who is willing and qualified to serve; and (iv) The Hub Manager determines that the nature of the conviction is such that appointment of the individual poses no risk to the beneficiary and is in the beneficiary's interest. (b) An individual may not serve as a fiduciary for a VA beneficiary if the individual: (1) Refuses or neglects to provide the authorization for VA disclosure of information prescribed in § 13.100(i); (2) Is unable to manage his or her own Federal or state benefits and is in a Federal or state agency's fiduciary, representative payment, or similar program; (3) Has been adjudicated by a court with jurisdiction as being unable to manage his or her own financial affairs; (4) Is incarcerated in a Federal, state, local, or other penal institution or correctional facility, sentenced to home confinement, released from incarceration to a half-way house, or on house arrest or in custody in any facility awaiting trial on pending criminal charges; (5) Has felony charges pending; (6) Has been removed as legal guardian by a stat… |
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