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Writ of Mandamus CAVC -Stump-

Writ of Mandamus CAVC -Stump-

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Published by jim912

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Published by: jim912 on May 23, 2011
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02/25/2012

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 In The
UNITED STATES COURT OF APPEALSFOR VETERANS CLAIMSWilliam L. Evans, )Dorothy J. Evans, and )Carolyn S. Stump, ) No. ___________Petitioners, ))
Petition For Extraordinary
v. )
Relief in the Nature of a
)
Writ of Mandamus
 Eric K. Shinseki, )
 
Secretary of Veterans Affairs, ))Thomas J. Murphy, Director of )Compensation and Pension Service, ))Nicholas Miller, Staff Attorney, )Indianapolis VA Regional Counsel, ))R. Dean Slicer, Fiduciary Manager, )Indianapolis VA Regional Office, ))and ))Ena Lima, Veterans Service Center )Manager, Indianapolis VA Regional )Office, )Respondents. )Pursuant to the All Writs Act (“AWA”), 28 U.S.C. § 1651(a), and the Court’sRule of Practice and Procedure 21, Petitioners William L. Evans, Dorothy J. Evans, andCarolyn S. Stump petition the Court for extraordinary relief in the nature of a writ of mandamus. Extraordinary relief is compelled in this matter because the Secretary’sillegal actions now threaten the financial destruction of the Evans family, their health,and possession of their home. Undersigned counsel has made repeated written and verbalpleas for relief to responsible VA officials, up to and including the C&P Director. The
 
 
- 2 -Secretary’s only action has been to seek recoupment of funds Ms. Stump expended onmedical treatment for her father. At the same time, she is nearing financial ruin frompaying her father’s expenses
out of her personal funds
because the Secretary schemeswith the current fiduciary to withhold payment for failure to comply with illegal,inconsistent, and punitive conditions. A writ of mandamus is thus appropriate andnecessary to force the Secretary to prevent the total destruction of Petitioners’ lives.
Summary of the Petition
When Petitioner Evans became seriously ill in February 2009, he asked hisdaughter, Petitioner Stump, to become his guardian for medical decision purposes. Mr.Evans desired a medical guardianship because he was suffering numerous serious healthconditions, including Alzheimer’s, and wanted someone he knew and trusted to direct hismedical care if he could not. Mrs. Evans, his wife of over 60 years, could not servebecause she faced many serious medical conditions herself. Ms. Stump was, therefore,the logical choice to carry out his healthcare wishes because she was not only hisdaughter, but a registered nurse who had long taken care of her elderly parents.In attempting to carry out her father’s wishes, Ms. Stump contacted theIndianapolis VA regional office for assistance. Instead of directing Ms. Stump to the VAMedical Center where she could obtain a simple form for appointment as her father’s
medical
guardian, the Secretary’s employees directed Ms. Stump to request appointmentas a “federal fiduciary” over her father’s
 finances
. The Secretary’s employees then used
 
 
- 3 -the medical information that Ms. Stump provided to have Mr. Evans declared“incompetent” and thus in need of the federal fiduciary that they created.Ms. Stump agreed to serve as the federal fiduciary because she mistakenlybelieved that she could continue to manage her parents’ finances as she had done for overa decade without complaint. The Secretary’s employees moved quickly to dispel thenotion that a federal fiduciary had any responsibility or authority to actually look out forthe beneficiary’s interests. VA instead quickly made clear that Mr. Evans’s interests,health, and welfare carried no weight.The Secretary’s employees literally appeared at the Evans’s door and within anhour mandated an inflexible budget based not on Mr. or Mrs. Evans’s needs or desires,but on “saving” an arbitrary amount from the monthly VA benefits for
 Mrs. Evans's future needs
. The Secretary’s employees strictly prohibited spending any amount of monthly benefits on “emotional spending” – even for medical treatments. Thus, theSecretary’s employees transformed a family enjoying the twilight of a veteran’s life intoa nightmare of financial crises and uncertainty.Ms. Stump, however, courageously continued acting in the best interests of herfather. Trained as a nurse, not an accountant, Ms. Stump also attempted to comply withthe Secretary’s byzantine and outdated funds request and financial reportingrequirements. The Secretary’s employees, however, ridiculed her efforts and demandedthat she conform her actions to VA’s arbitrary dictates rather than her father’s interests.In other words, the Secretary’s employees explicitly prohibited any expenditure that

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