TN 46 (01-17)

A. Policy for legal evidence of capability

Legal evidence is required when there is an allegation that the beneficiary is legally incompetent. If a court establishes that the beneficiary is incompetent, the beneficiary must receive benefits through a payee and no other capability development is necessary.

1. What is legal evidence of incompetency?

Legal evidence is one type of evidence that establishes an individual's inability to handle his or her financial affairs. There must be a court order in place for a finding that an individual is incompetent. You must ensure you have a copy of this court order. Refer to the Digest of State Guardianship Laws (see GN 00502.300) for information on how to assess whether a court order establishes that the individual is legally incompetent or indicates the need for a representative payee.

2. How do I know if someone is legally incompetent?

Evidence of legal incompetence usually takes the form of a court order appointing a legal guardian. However, it is important to note that the court appointment of a legal guardian does not necessarily mean the beneficiary is legally incompetent. The court order must specifically address the beneficiary's competency or must contain a statement regarding the individual's ability to handle his or her financial affairs. If the court order does not specify incompetency, the Digest of State Guardianship Laws (see GN 00502.300) can help you determine if the court order represents a finding of legal incompetence. Power of attorney makes no finding about an individual’s capability or competence (See GN 00502.139).

NOTE: When the court order is unclear on whether or not the beneficiary is incompetent, consider calling the court for clarification (see United States Court Locator).

REMEMBER: You may use a court order as evidence even when it does not establish legal incompetency. Weigh the order along with all the other evidence in your capability determination if it describes the beneficiary's ability or lack of ability to manage benefits.

B. Procedure - Legal incompetency

The answers you find to these questions will help you determine if a beneficiary is incompetent:

1. How do I determine if someone is legally incompetent?

Obtain a certified copy of the court order establishing competency. If the court order does not specifically indicate incompetency, look for statements concerning the beneficiary's ability to handle his or her financial affairs/responsibilities.

2. Does the court order specifically include a finding of or language to indicate legal incompetence?

If the answer is:

• yes, to go GN 00502.023B.4.

• no, to go GN 00502.023B.3.

3. Does the court order meet the criteria for a finding of legal incompetence?

Consult the Digest of State Guardianship Laws (see GN 00502.300).

If the answer is:

• yes, go to GN 00502.023B.4.

• no, the beneficiary is not legally incompetent. Treat the court order as lay evidence per GN 00502.023A.

4. Was the court order made more than 1 year ago?

If the answer is:

• yes, obtain evidence to show that the order is still in effect (see GN 00301.030B.3.); contact the court to obtain this information, if needed. If you obtained evidence, go to GN 00502.023B.5.

• no, go to GN 00502.023B.5.

5. Document the court order information

You must scan the court order into the Non-Disability Repository for Evidentiary Documents (NDRED) or eView.

ALERT: If you can establish incapability based on convincing evidence (see GN 00502.020 through GN 00502.060), do not delay a payee appointment merely to obtain proof of incompetency. However, you must:

• Obtain evidence of legal incompetency (the court order).

• Diary the case for 10 days for receipt of the court order.

• After you receive the court order:

  • Enter the court document details of the legal guardian and legal incompetence on the electronic Representative Payee System (eRPS) Court-Appointed Legal Guardian Details screen (see MS INTRANETERPS 009.007 Legal Guardian Information) for cases established in eRPS.

  • Scan the court order into NDRED or eView.

C. Procedure - Reevaluating payment prohibition

What If a Legally Incompetent Beneficiary Requests Direct Payment?

If a beneficiary who a court found legally incompetent requests direct payment of his or her benefits, you must obtain new legal evidence (a court order) showing the beneficiary is now legally competent. If you cannot obtain such evidence, you must continue payment through a payee.