New VA-DOJ Rule: Can VA Put More Veterans Under Guardianship?

CCK Law: Our Vital Role in Veterans Law

The Department of Justice (DOJ) and Department of Veterans Affairs (VA) have issued a new agreement that gives certain VA attorneys the power to initiate proceedings in state court to have a legal guardian appointed over a veteran’s finances and medical decisions.

Though this new rule may help a certain subset of legally incompetent veterans, it also raises serious questions about due process, the definition of “at risk of homelessness,” and what happens when a veteran cannot easily fight back against VA.

Key points of this article include:

• VA and DOJ signed a memorandum of understanding (MOU) authorizing VA attorneys to act as special assistant U.S. attorneys in state court guardianship cases, allowing these attorneys to initiate guardianship proceedings in state courts.
• VA sources say the stated target of this rule is the 700 hospitalized veterans with no family representative, but the MOU extends to veterans who are homeless or “at risk of homelessness.”
• Guardianship is often permanent by design. Once imposed, the burden falls on the veteran to prove in court that their autonomy should be restored.
• Several major veterans service organizations have raised due process concerns about the new arrangement.

What Is a “Guardian” in VA Disability Law?

“A guardian in veterans disability law is a court-appointed individual legally responsible for managing the affairs, finances, or medical decisions of a veteran deemed incompetent or unable to manage their own needs,” says Bradley Hennings, partner at CCK Law. “Guardianships are often initiated for veterans with severe physical or mental impairments.”

Several other legal concepts are similar but distinct from guardianship. A few of these terms that are often confused with guardianship include:

• VA Fiduciary Program: VA’s internal program that appoints a fiduciary to manage VA benefit payments for a veteran found mentally incapable of doing so by VA. A fiduciary manages only VA funds, not all financial or medical decisions. Fiduciary determinations are made by VA — not a court.
• Power of Attorney (POA): A voluntary legal document in which a veteran authorizes another person to act on their behalf. Unlike guardianship, a POA is chosen by the veteran, not imposed by a court.
• Civil Commitment: A court process for temporary involuntary psychiatric hospitalization. Unlike guardianship, civil commitment is generally time-limited and does not permanently transfer legal authority to another person.
• Conservatorship: Similar to guardianship, but typically limited to financial decisions. Some states use the terms interchangeably. The new MOU authorizes proceedings for both guardianship and conservatorship.

It is important to keep in mind that state courts and judges have the authority to determine whether guardianship is needed. Though VA can now initiate the court proceedings, the final decision ultimately still rests with the court.

Concerned about the new guardianship rule? CCK Law Partner Bradley Hennings covers the essentials of the topic in this video:

What New Guardianship Rule Is VA Implementing?

In March 2026, VA and the Department of Justice announced a new memorandum of understanding (MOU). Under the MOU, DOJ is authorized to designate VA attorneys as special assistant United States attorneys.

“This designation gives those VA attorneys the legal authority to initiate guardianship or conservatorship proceedings in state courts [on behalf of VA],” says Bradley Hennings. “These are proceedings that could remove a veteran’s right to make their own financial and medical decisions.”

In short, this new MOU creates a pipeline where:

• VA identifies a veteran who lacks the capacity to make legal decisions;
• VA attorneys file guardianship or conservatorship proceedings in state court;
• If VA’s proposal is accepted, a state judge appoints a guardian; and
• The veteran may end up being treated at a VA facility.

While this new rule may be helpful for veterans in genuine need of guardianship, it has also raised concerns as to the amount of influence it could give VA over the lives of disabled veterans, since it would involve VA in almost every step of the guardianship process.

Why Is VA Implementing This New Guardianship Rule?

“VA has said the immediate focus is on approximately 700 veterans currently in VA medical facilities who have no family or legal representative to authorize transitions out of those facilities,” says Hennings. “That is a real problem, and for some veterans a court-appointed guardian may genuinely be the right answer.”

For an incapacitated veteran in a situation like this, there may be no one to sign discharge paperwork, consent to a care plan, or authorize a move to a long-term care facility.

VA’s argument is that a court-appointed guardian could resolve that impasse, and that by acquiring these additional legal powers, VA attorneys can take action to further the best interests of these veterans.

Why Are Veterans and VA-Accredited Attorneys Concerned About the New Guardianship Rule?

While VA’s stated goal is narrow, the structure and language of this MOU raise concerns that extend beyond currently hospitalized veterans.

Several major veterans service organizations — including the Paralyzed Veterans of America, the National Coalition for Homeless Veterans, and Iraq and Afghanistan Veterans of America — have expressed concerns about due process, oversight, and the risk that guardianship could be used as a substitute for services veterans actually need.

Potentially Violates Due Process

Basic due process principles require that the party making a legal determination be independent from the party initiating the action. This new MOU, however, might blur that line significantly.

“The structure of this arrangement raises serious due process questions that the veterans law community cannot ignore,” says Hennings. “VA is simultaneously the treating institution, the party that made the clinical determination of incapacity, and now the party filing the legal action.”

This lack of independent oversight of the guardianship process could lead to legal issues and conflicts regarding a veteran’s rights to due process.

Gives VA Broad Authority Over Disabled Veterans

“This MOU extends beyond hospitalized veterans. It also covers veterans who are homeless or, in the MOU’s own words, ‘at risk of homelessness’,” says Hennings. “That phrase has no legal threshold in this agreement. It is elastic in a way that should concern anyone who works in this space.”

This legal ambiguity could expose a much larger population of veterans to guardianship proceedings than VA’s initial framing suggests, creating real uncertainty about which veterans could be targeted under the new rule.

For instance, a veteran experiencing housing instability — which is common among veterans with severe service-connected disabilities — could potentially fall within that phrase’s reach and have guardianship proceedings filed against them by VA.

Guardianship Is Not Easy To Revoke

Once a court appoints a guardian over a veteran, the arrangement stays in place unless someone goes back to court to change it — a burden that would likely fall on the veteran.

“Unlike a civil commitment which expires, a guardianship is designed to be permanent,” says Hennings. “It can be revisited, but the burden falls on the veteran to prove to a court that they should get their autonomy back.”

For a veteran who may lack independent legal representation, financial resources, or strong family support, meeting that bar can be extraordinarily difficult. The result is that an initial guardianship proceeding may become, in practice, a permanent one.

Want tips on how to fight an incompetency proposal from VA? In this video, CCK Law Managing Advocate Michelle DeTore discusses the topic with VA-Accredited Claims Advocate Brandon Paiva:

What Should Veterans and Advocates Watch For?

It may take some time for any possible legal issues surrounding this new rule to appear. Some legal questions that veterans and advocates should think about include:

• How will VA define “at risk of homelessness” in practice?
• What notice and legal representation will VA provide to veterans before filing?
• What oversight mechanisms will apply to VA attorneys acting as special assistant U.S. attorneys?
• Will Congress or the courts impose additional procedural safeguards?

It is likely some of these questions will be addressed in the coming months and years as a result of this new MOU.

Frequently Asked Questions

Can VA initiate guardianship proceedings against a veteran without their consent?

Yes, it potentially can.

Under the new MOU, VA attorneys can now file guardianship proceedings in state courts. These proceedings can result in a court-appointed guardian taking control of a veteran’s financial and medical decisions, even if the veteran has not requested this and objects.

How is guardianship different from the VA Fiduciary Program?

The VA fiduciary program appoints a fiduciary to manage a veteran’s VA benefit payments only. Guardianship is broader: A guardian can control all finances and medical decisions.

Additionally, fiduciary appointments are made by VA internally, while guardianship generally requires a court order.

Which veterans are covered by the new MOU?

VA stated that the immediate focus is on about 700 hospitalized veterans with no family to make legal decisions on their behalf. VA’s logic in implementing this new MOU is to help provide official guardians who can take action, like signing a veteran’s discharge paperwork or consenting to a new care plan for them.

However, the MOU also extends to veterans who are homeless or “at risk of homelessness” — a term the MOU does not define. This has raised concerns among veterans that this MOU could grant VA far-reaching authority over a veteran’s legal and medical decisions.

Can a veteran reverse a guardianship?

Yes, but it is difficult. A guardianship can be revisited by a court, but the burden falls on the veteran to demonstrate that their autonomy should be restored.

For veterans with limited legal resources or no independent representation, this is a high bar to clear.