Guardianship and Veterans’ Rights: Examining the DOJ-VA Memorandum of Understanding
The Department of Justice (DOJ) and the Department of Veterans Affairs (VA) have entered into a Memorandum of Understanding (MOU) intended to improve the quality of life and support post-acute transitions of care for veterans who are clinically determined to lack decision-making capacity by appointing appropriate legal decision makers. Memorandum of Understanding Between the Department of Justice and the Department of Veterans Affairs Regarding Cooperation in State Guardianship Proceedings for Incapacitated Veterans [hereinafter DOJ & VA MOU] (Mar. 3, 2026), https://www.documentcloud.org/documents/27871268-mou-doj-va/. While this MOU was designed to address difficult and often urgent situations facing veterans, it has also generated discussions regarding the balance between protecting veterans and preserving their autonomy.
At its core, the MOU establishes a cooperative framework between the DOJ and the VA to secure legal decision-makers for veterans who are unable to make decisions for themselves. DOJ & VA MOU. The MOU addresses a significant challenge. Hospitals or long-term care facilities encounter veterans who are ready for discharge but cannot consent to care arrangements because they lack legal decision-making capacity and do not already have an authorized guardian or conservator. VA, DOJ Sign Agreement to Improve Care for Nation’s Most Vulnerable Veterans, VA News (Mar. 11, 2026), https://news.va.gov/press-room/va-doj-sign-agreement-to-improve-care-for-nations-most-vulnerable-veterans/. In these situations, discharge can stall for extended periods of time, leaving veterans in a care facility for longer than medically necessary, which then delays the ability for veterans to be placed into appropriate long-term support systems. Id.
Supporters of the MOU argue that it addresses a genuine gap within the system. Veterans who are experiencing severe cognitive impairments, traumatic brain injuries, or other conditions may require legal intervention to ensure safe access to housing, rehabilitation services, or medical treatment. VA, DOJ Sign Agreement to Improve Care for Nation’s Most Vulnerable Veterans. From this perspective, the MOU provides a mechanism that can help move challenging cases forward more efficiently while also ensuring veterans receive appropriate care. Id.
Under the Memorandum, the Attorney General has sole discretion to appoint VA Office of General Counsel attorneys as Special Assistant U.S. Attorneys (SAUSA’s) to initiate and participate in state court guardianship and conservatorship proceedings where a legal decision-maker is required for post-acute transitions of care. DOJ & VA MOU. The VA may recommend the attorneys, but the Attorney General retains sole appointing authority and may terminate them at any time. Id. The VA urges that these appointed attorneys will be a “lifeline” for the veterans, stating that “among other things, a legal guardian or conservator can help Veterans avoid unwarranted continued hospitalization, protect their rights, and promote appropriate transitions of care from VA hospitalization to other forms of VA care or care in the community, if appropriate.” VA, DOJ Sign Agreement to Improve Care for Nation’s Most Vulnerable Veterans. However, the concentration of authority within the Attorney General’s office and the lack of clearly defined independent oversight mechanisms have raised concerns about self-interest, bias, and accountability on the part of the government. Id.; Katie Ettl, VA-DOJ Memorandum Raises Concerns, Swords-To-Plowshares (Mar. 23, 2026), https://www.swords-to-plowshares.org/post/va-doj2026.
Those opposing the new MOU raise concerns about the effect that this lack of independent oversight will have on veterans. Ettl, VA-DOJ Memorandum Raises Concerns. Veteran advocacy group Swords to Plowshares urges federal leaders to clarify the legal basis and assess the system’s ability to meet the increased demand for care before implementation. Id. The group raises concerns about the lack of clarity in the Memorandum, which leads to issues with implementation and supervision, and about veterans’ fear of the system due to an increased risk that independent judgment and power will be removed from them and placed in the hands of the VA and DOJ. Id.
The National Coalition for Homeless Veterans raises the same concerns and “urges federal agencies to ensure that any new policy affecting vulnerable veterans is implemented with clear oversight, strong due process protections, and close coordination with community providers.” NCHV Statement on VA-DOJ Guardianship Policy Implications for Veterans Experiencing Homelessness, National Coalition for Homeless Veterans, https://nchv.org/nchv-statement-on-va-doj-agreement-affecting-guardianship-proceedings-for-veterans/. Without clarification, these groups are worried that veterans’ best interests might not “carry the day” when the government simultaneously holds the position of veteran advocate and institutional healthcare provider. Id. Clear standards and safeguards can reduce fears of unnecessary loss of independence while still allowing the VA to fulfill its mission to support these veterans. Id.
The Memorandum is well intended to solve a specific issue, protecting vulnerable veterans, but the larger implication of giving them this power risks veterans’ autonomy. By clarifying the process and ensuring that oversight is independent and balanced, the VA and DOJ reduce the risk of veterans losing their autonomy when it runs counter to their institutional priorities. Through work with similarly situated veterans at the Betty and Michael D. Wohl Veterans Legal Clinic (the VLC) at the Syracuse University College of Law, the VLC understands the importance of ensuring veterans receive appropriate care, as well as the real concern surrounding the misuse or overreach that these powers might open the door to. While legal intervention may sometimes be necessary for veterans who cannot advocate for themselves, these protections must be balanced with meaningful oversight and due process safeguards.