---
kind: "section"
citation: "38 C.F.R. § 13.40"
title: "38"
number: "13.40"
heading: "Representation of beneficiaries in the fiduciary program."
url: "https://uscodex.org/cfr/38/13.40"
---

# §13.40. Representation of beneficiaries in the fiduciary program.


The provisions of 38 CFR [14.626 through 14.629](/cfr/38/14.626..14.629.md) and [14.631 through 14.637](/cfr/38/14.631..14.637.md) 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](/cfr/38/14.631.md) 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)](/cfr/38/14.632.md?p=a..c) of this chapter, and attorneys must also comply with the standards prescribed in [§ 14.632(d)](/cfr/38/14.632.md?p=d). For purposes of this section:
  - (1) **A fiduciary matter is not a claim for VA benefits.** However, the term claimant in [§ 14.632](/cfr/38/14.632.md) of this chapter includes VA beneficiaries who are in the fiduciary program, and the term claim in [§ 14.632](/cfr/38/14.632.md) includes a fiduciary matter that is pending before VA.
  - (2) The provisions of [§ 14.632(c)(7) through (9)](/cfr/38/14.632.md?p=c-7..c-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](/cfr/38/13.120.md) and the investigation of a proposed fiduciary prescribed by [§ 13.100](/cfr/38/13.100.md);
    - (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 alleged violation of the standards of conduct prescribed in this section to the VA Chief Counsel who administers the accreditation program for a determination regarding further action, including suspension or cancellation of accreditation under [§ 14.633](/cfr/38/14.633.md) of this chapter, and notification to any agency, court, or bar to which the attorney, agent, or representative is admitted to practice.
- (c) **Fees.** Except as prescribed in [paragraphs (c)(1)(i) through (iii)](#c-1-i..c-1-iii) of this section, an accredited attorney or claims agent may charge a reasonable fixed or hourly fee for representation services provided to a beneficiary in a fiduciary matter, provided that the fee meets the requirements of [§ 14.636](/cfr/38/14.636.md) of this chapter.
  - (1) The following provisions of [§ 14.636](/cfr/38/14.636.md) of this chapter do not apply in fiduciary matters:
    - (i) Fees under [§ 14.636(e)](/cfr/38/14.636.md?p=e) of this chapter, to the extent that the regulation authorizes a fee based on a percentage of benefits recovered;
    - (ii) The presumptions prescribed by [§ 14.636(f)](/cfr/38/14.636.md?p=f) of this chapter based upon a percentage of a past-due benefit amount. In fiduciary matters, the reasonableness of a fixed or hourly-rate fee will be determined based upon application of the reasonableness factors prescribed in [§ 14.636(e)](/cfr/38/14.636.md?p=e); and
    - (iii) Direct payment of fees by VA out of past-due benefits under § [14.636(g)(2)](/cfr/38/14.636.md?p=g-2) and [(h)](/cfr/38/14.636.md?p=g-h) of this chapter.
  - (2) An accredited attorney or claims agent who wishes to charge a fee for representing a beneficiary in a fiduciary matter must comply with the fee agreement filing requirement prescribed in [§ 14.636(g)(3)](/cfr/38/14.636.md?p=g-3) of this chapter.
  - (3) VA, the beneficiary, or the beneficiary's fiduciary may challenge the reasonableness of a fee charged by an accredited attorney or claims agent using the procedures prescribed in [§ 14.636(i)](/cfr/38/14.636.md?p=i) of this chapter.

## Notes

### Authority

Authority: 38 U.S.C. 501, 5502, 5506-5510, 6101, 6106-6108, and as noted in specific sections.

### Source

Source: 83 FR 32738, July 13, 2018, unless otherwise noted.