TN 14 (04-18)

A. PS 17-119 State Law Survey of Conservatorship/Blocked Accounts in Atlanta Region

Date: July 20, 2018

1. Syllabus

The Regional Chief Counsel (RCC) opinion provides a comprehensive list of State laws, in the Atlanta Region, on the ability of individuals to access funds in conservatorship/blocked accounts for the purpose of support and maintenance for Supplemental Security Income (SSI) claimants and recipients.

2. Opinion

QUESTION

You asked for a comprehensive list of state laws in the Atlanta Region on the ability of individuals to access funds in conservatorship/blocked accounts for the purpose of support and maintenance for Supplemental Security Income (SSI) claimants and recipients.

DISCUSSION

Introduction

A “conservatorship account” (sometimes referred to as a “blocked account”) is a financial account in which a person or institution has been appointed by a court to manage and preserve the assets of an individual (i.e., a claimant, recipient, or other person whose resources are deemable to the claimant or recipient) that are held in the account. See Program Operations Manual System (POMS) SI 01140.215A.1, A.2. The Social Security Administration (SSA) assumes, absent evidence to the contrary, that funds in a conservatorship account are available for the individual’s support and maintenance (and are, therefore, that individual’s resource) if state law requires that funds in a conservatorship account be made available for the care and maintenance of an individual. See POMS SI 01140.215B.1. However, state law may not specifically address the issue, or state law may specifically prohibit the use of funds held in a conservatorship account for the individual’s general support in certain circumstances. See id.

Thus, SSA needs regional instructions regarding any presumptions about conservatorship accounts for each state. We note that in the states in the Atlanta Region, not all states have laws that specifically discuss conservatorship accounts. However, each state does allow for the appointment of persons similar to conservators and the creation of financial accounts similar to conservatorship accounts.

Alabama

Under Alabama law, a court may appoint a conservator for the estate and affairs of a minor or a person unable to manage property and business affairs effectively if the court determines that the minor or person has funds or property that requires management or protection and the funds are needed for health, support, education, or maintenance and that protection is necessary or desirable to obtain or provide funds. See Ala. Code § 26-2A-130 (2017). The appointment of a conservator vests in the conservator title as trustee of the property of the protected person, and the protected person generally cannot transfer or assign his or her interest in the property vested in a conservator. See Ala. Code § 26-2A-148 (2017). A conservator is given numerous powers over the property of a protected person, including the power to distribute the property of the protected person. See Ala. Code §§ 26-2A-152, 26-2A-153 (2017). In particular, “[a] conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the health, support, education, or maintenance of the protected person and dependents.” Ala. Code § 26-2A-153(a). In addition, a conservator must expend or distribute sums reasonably necessary depending on the specific circumstances of the protected person, including the protected person’s accustomed standard of living. See Ala. Code § 26-2A-153(a)(2).

Thus, under Alabama law SSA may assume that funds in the conservatorship can be made available for the support and maintenance of the SSI claimant or recipient.

Florida

Although Florida has a chapter under its domestic relations law titled “Conservatorship,” the chapter is limited to conservatorships for persons who are absentees. See Fla. Stat. Ann. §§ 747.01 - .052 (West 2017). “Absentee” includes persons serving in the Armed Forces of the United States or similar entities during a time of hostilities who are reported as missing in action or who disappears under circumstances indicating her or she may have died. See Fla. Stat. Ann. § 747.01. Because “absentee” does not include persons who might be eligible for SSI, Florida’s formal conservatorship law is not applicable here. However, Florida guardianship law appears to address the circumstances under which a party may have control of the funds or assets of a person who is not an “absentee.” See Fla. Stat. Ann. §§ 744.101 - .653 (West 2017).

Under Florida guardianship law, a guardian of an incapacitated person is a fiduciary and may exercise only those rights that have been removed from the ward and delegated to the guardian; the guardian shall act within the scope of the authority granted by the court and as provided by law. Fla. Stat. Ann. § 744.361(1), (2). A guardian, if authorized by the court, shall take possession of all of the ward’s property and rents, income, issues, profits from it and the proceeds of any sale, lease, or mortgage of the property. See Fla. Stat. Ann. § 744.361(12) (West 2017). The guardian may use the ward’s assets and income from the property for care, support, maintenance, and education of the ward or the ward’s dependents, as provided under terms of guardianship plan or by law or as authorized by the court. See Fla. Stat. Ann. §§ 744.361(12), 744.397(1); see also Fla. Stat Ann. § 744.444 (without obtaining court approval, a plenary guardian of the property or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual/amended guardianship report may pay reasonable living expenses for the ward (but no authorization to pay funds for living expenses of minor ward if one or both parents are alive)).

Thus, before assuming the funds are available for support and maintenance of the SSI claimant or recipient, SSA should review the court order/initial plan to determine the scope of authority granted by the court.

Georgia

Under Georgia law, a conservator shall receive, collect, and make decisions about the property of a minor or ward except as otherwise provided by law or by the court and must “[p]rovide for the support, care, education, health, and welfare of the [minor or ward].” Ga. Code Ann. §§ 29-3-21(a), (b)(5), 29-5-22(a), (b)(5) (West 2017). In addition, a minor or ward for whom a conservatorship is created has the right to have his or her property “utilized as necessary to provide adequately for the [minor’s or ward’s] support, care, education, health, and welfare.” Ga. Code Ann. §§ 29-3-20(a)(3), 29-5-20(a)(3) (West 2017). A conservator may use any income from the property/funds within the conservatorship for the support, care, education, health, and welfare of the minor or ward. See Ga. Code Ann. §§ 29-3-22(a)(1), 29-3-30(c), 29-5-23(a)(1), 29-5-30(c) (West 2017). However, the conservator must have approval from the court of a budget for expending funds/resources in excess of the income from the property. See Ga. Code Ann. §§ 29-3-22(a)(1), 29-5-23(a)(1).

Thus, under Georgia law, SSA may assume that the funds in the conservatorship can be made available for the support and maintenance of the SSI claimant or recipient. However, SSA should obtain the court order granting the conservatorship to check for any restrictions on the disbursement of the assets of the minor or ward.

Kentucky

Under Kentucky law, any interested person or entity may petition the district court for appointment of a conservator for a minor who owns property requiring management or protection. See Ky. Rev. Stat. Ann. § 387.025(2) (West 2017). Similarly, any interested person or an individual needing conservatorship may petition the district court for the appointment of a limited conservator or conservator. See Ky. Rev. Stat. Ann. § 387.530(1) (West 2017). A guardian must expend or distribute income or principal of the ward’s estate for the support, care, and education of the ward, but the district court may limit or restrict the guardian’s exercise of this power. See Ky. Rev. Stat. Ann. § 387.065(4) (West 2017). In addition, a guardian cannot provide for the support, care, or education of a ward if a parent is legally obligated and financially able to provide support, care, and education. See Ky. Rev. Stat. Ann. § 387.065(6). A conservator must generally use the income and principal of the account for the support, care, and education of the minor. A conservator generally does not require court authorization to use funds for these purposes, but a court may require the court’s order before the conservator withdraws funds and a court may restrict access to the account’s funds. Ky. Rev. Stat. Ann. §§ 387.065(4)-(6), 387.122, 387.125(1), 387.137.

Thus, in Kentucky, SSA may assume that the funds in a conservatorship account can be made available for the support and maintenance of the SSI claimant or recipient. However, SSA should obtain the court order granting the conservatorship to check for any restrictions on the disbursement of the assets of the minor or ward.

Mississippi

Under Mississippi law, a court “may appoint a conservator to have charge and management of the property of” a person who “is incapable of managing his own estate by reason of advanced age, physical incapacity or mental weakness.” Miss. Code Ann. § 93-13-251 (West 2017). A “conservator shall have the same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator.” Miss. Code Ann. § 93-13-259 (West 2017); see also Miss. Code Ann. § 93-13-261 (West 2017) (stating “the person whose property or person is in the charge of such conservator shall be limited in his or her contractual powers and contractual obligations and conveyance powers to the same extent as a minor”). Applying Mississippi guardianship law, a court may determine the amount of funds that a conservator may expend for the support and maintenance of the person for whom the conservatorship is established. See Miss. Code Ann. § 93-13-35 (West 2017). The court also may authorize the sale of the person’s property if the income from the person’s estate does not cover necessary expenses, and a conservator cannot make any expenditure in excess of the person’s income without a previous court order authorizing such expenditures. See id.; see also Miss. Code Ann. § 93-13-263 (West 2017) (stating “[i]f there be any persons dependent upon the person for whom the conservator has been appointed, the court shall provide for their support and maintenance from the assets of said estate and the conservator shall be directed to make the necessary support and maintenance available from the assets of said estate”). A conservator has the duty “to apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the [person for whom the conservatorship is established] after obtaining an order of the court fixing the amount.” Miss. Code Ann. § 93-13-38(2) (West 2017). A conservator empowered to purchase a home for the person for whom the conservatorship is established and pay the person’s debts. See id. However, if the person for whom the conservatorship is established is a minor and had a parent, the court must determine whether the expense of maintaining and educating the minor must be borne by the guardian. See Miss. Code Ann. § 93-13-37 (West 2017).

Thus, in Mississippi, SSA cannot assume the funds in a conservatorship account are available for the support and maintenance of the SSI claimant or recipient. SSA must review the court order establishing the conservatorship and any subsequent court orders concerning the authority of the conservator to use the funds of the SSI claimant or recipient.

North Carolina

Under North Carolina law, the statute lays out the specific powers of a general guardian or guardian of the estate (a legal designation that the agency considers equivalent to a conservator), which includes an appointee, who takes possession of the individual’s estate for the individual’s use to expend estate income for the support, maintenance, and education of the individual’s minor children, spouse, and dependents and who can petition the court for prior approval of expenditures from the estate principle for these purposes. N.C.G.S.A. § 35A-1251(1), (21).

Thus, it may be presumed that funds under conservatorship are to be made available for the maintenance and support of the protected individual.

South Carolina

Currently in South Carolina, a guardian/conservator may expend or distribute sums from the principal of an estate without court authorization or confirmation for the support, education, care, or benefit of the protected person and his dependents in accordance with certain principals. See Code of Laws of S.C. § 62-5-425. Thus, the funds under conservatorship are countable as a resource for the protected individual.

Beginning January 1, 2019, a guardian serving as a fiduciary, is obligated to apply the money for the benefit of the minor/incapacitated person, but the court must explicitly set forth the rights and powers vested in the conservator (if the powers are not entrusted to the conservator, they are retained by the protected individual). See S.C. Statute § 62-5-103(B) (2017 amendment); § 62-5-304(A) (for minors); § 62-5-407(A), (B) (for incapacitated adults)); § 62-5-304(B) (2017 amendment). Subject to rights and powers retained by the ward and except as modified by order of the court, the guardian has the following duties, rights and power: if entitled to custody of his ward, providing for the care, comfort, and maintenance of the ward. See § 62-5-309(A) (2017 amendment); § 62-5-423 (A)(2) (a conservator may expend or distribute sums from the estate without further court authorization for the health, education, maintenance, and support of the protected person and his dependents in accordance with certain principles as outlined in the statute).

Thus, in South Carolina, SSA may currently assume that the funds in a conservatorship account can be made available for the support and maintenance of the SSI claimant or recipient. However, beginning in January 2019, SSA should obtain the court order granting the conservatorship to check for any restrictions on the disbursement of the assets the claimant.

Tennessee

Under Tennessee law, conservatorship “is a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators.” Tenn. Code Ann. § 34-1-101(4)(B) (West 2017). A conservator is a person or entity “appointed by the court to exercise the decision-making rights and duties of the person with a disability in one or more areas in which the person lacks capacity as determined and required by the orders of the court.” Tenn. Code Ann. § 34-1-101(4)(A); see also Tenn. Code Ann. § 34-1-101(7) (stating that a conservator is a fiduciary). The ability of the conservator to use the funds placed under conservatorship will depend on the specific rights and duties laid out in the letters of conservatorship or court order establishing the conservatorship. See Tenn. Code Ann. §§ 34-1-104(a), 34-1-113(a)-(c), 34-1-122, 34-3-107(a)(2) (West 2017); see also In re Conservatorship of Melton, No. E2014-01384-COA-R3-CV, 2015 WL 4594126, at *4 (Tenn. Ct. App. July 31, 2015) (stating the authority, rights and responsibilities of a conservator are not independent of the court, as a conservator acts as the court’s agent). The Court can grant the conservator the power to pay bills and expenses of the person with a disability, but the specific powers of the conservator will be based on the letters of conservatorship or court order. Tenn. Code Ann. § 34-1-113(a), (b), 34-1-129, 34-3-107(a)(2) (West 2017); see also Tenn. Code Ann. § 34-1-109(b) (West 2017) (stating that “the fiduciary’s faithful performance oath shall include a promise to timely file each required inventory and accounting and to spend the assets of the minor or person with a disability only as approved by the court”); Tenn. Code Ann. § 34-3-108 (West 2017) (allowing for the modification of a conservator’s duties by court order).

Thus, in Tennessee, SSA cannot assume the funds in a conservatorship account are available for the support and maintenance of the SSI claimant or recipient. SSA must review the letters of conservatorship and court order(s) to determine the scope of authority granted to the conservator by the court.

Sincerely,

M~

Regional Chief Counsel

By: K~

Assistant Regional Counsel

B. PS 10-018 Resource Determination Regarding Spouse’s Interest in a Limited Liability Company – Tennessee Applicant – Stephen

Date: October 30, 2009

1. Syllabus

This opinion examines whether or not a parent deemor’s interest in a limited liability company (LLC) is a countable resource for Supplemental Security Income (SSI) purposes. The property held within the LLC does not meet the criteria for exclusion from resources per Section 1613 of the Social Security Act. Under the terms of the Operating Agreement for the LLC, the parent deemor may sell his financial interest. Therefore, the parent deemor’s interest in the LLC is a countable resource for SSI purposes and deemed to the child to the extent that the amount exceeds the applicable resource limits.

2. Opinion

QUESTION

You asked whether a 1% interest in a limited liability company (LLC) is considered a countable resource for the purposes of determining eligibility for Supplemental Security (SSI) payments.

OPINION

We believe the Social Security Administration (SSA) should consider the interest in the LLC as a countable resource.

BACKGROUND

Stephen (Applicant) applied for SSI on August 30, 2002, and his application was approved on November 23, 2003. Applicant’s spouse, Deloise, owns a 1% interest in Drennan Family Farm, LLC. After conducting a redetermination in March 2009, SSA learned of the interest Applicant’s spouse had in the LLC. SSA issued an initial resource notice on April 4, 2009, notifying Applicant that his spouse’s property interest in the LLC was a countable resource for the purposes of determining Applicant’s eligibility for SSI payments and that his resources, therefore, exceeded the resource limit of $3,000.00. Applicant has requested reconsideration of SSA’s initial determination.

The operating agreement of the LLC, dated June 21, 2006 (Operating Agreement), shows Applicant’s spouse has a 1% undivided membership interest as a Class B member in a tract of land, held by the LLC. The assets of the LLC consist of 163 acres of rental farm land. The operating agreement also shows the parents of Applicant’s spouse hold a 94% membership interest and are Class A members and managers of the LLC. Other family members hold the remaining 5% membership interest as Class B members.

Under the terms of the Operating Agreement, a member may assign his or her financial rights to a member or any immediate family member without restriction. Each member may also assign his or her financial rights to a third party with certain restrictions: (1) if a member desires to transfer or assign his financial rights, he must give the LLC the right of first refusal; (2) if the LLC does not exercise its option to purchase within thirty days, the other members shall have the option to purchase the financial rights; (3) if the other members do not exercise their option within thirty days, the member may consummate the sale to the third party; (4) the third party must pay a transfer fee to cover all reasonable expenses connected with the his substitution as a member of the LLC. See Operating Agreement, Article X, pp. 17-19.

DISCUSSION

Under the Social Security Act (Act), a disabled individual may receive SSI payments if his or her income and resources do not exceed certain annual limits. See Act § 1611(a). The Act does not define “resources” and provides only a list of certain items excluded in determining the resources of an individual. See Act § 1613(a). However, Congress empowered the Commissioner to promulgate rules and regulations on the nature and extent of proofs and evidence on such matters. See Act §§ 205(a), 1631(d)(1). Pursuant to that authority, the Commissioner has clarified that resources include “any real or personal property interest that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance.” 20 C.F.R. § 416.1201(a) (2009); see Program Operations Manual System (POMS) SI 01120.010(B). “If the individual has the right, authority or power to liquidate the property, or his or her share of the property, it is considered a resource. If a property right cannot be liquidated, the property will not be considered a resource of the individual (or spouse).” 20 C.F.R. § 416.1201(a)(1); see POMS) SI 01110.100(B). Where a disabled individual is married and his or her spouse lives in the same household and is not aged, blind, or disabled individual, SSA deems the disabled individual’s income and resources to include a portion of income and resources of the ineligible spouse. See Act § 1614(f)(1); 20 C.F.R. § 416.1202(a), (c); POMS SI 01310.160(A). Deemed income and resources are attributed to the disabled individual whether or not they are actually available to him or her. See Act § 1614(f)(1); POMS SI 01310.001(C)(1). Because Applicant’s spouse is an ineligible spouse, her income and resources (after any appropriate exclusions) would be attributable to Applicant.

We refer to state corporate law to determine whether the 1% interest in the LLC owned by Applicant’s spouse should be counted as a resource. See Cannuni v. Schweiker, 740 F.2d 260, 263 (3d Cir. 1984); POMS SI 01110.500(C) (noting an ownership interest may vary depending on State law). The LLC at issue was incorporated in Tennessee. Therefore, we look to Tennessee law to determine whether Applicant’s spouse can sell her interest in the LLC. The LLC was formed on June 21, 2006. The Tennessee Revised Limited Liability Company Act (Tennessee LLC Act), Tenn. Code Ann. §§ 48-249-101-1133 (2009), applies to all LLCs formed after January 1, 2006, and provides for the formation of a business entity that offers all its members limited liability as if they were shareholders of a corporation but treats the entity as a partnership for tax purposes. See Collier v. Greenbrier Developers, LLC, No. E2008-01601-COA-R3-CV, 2009 WL 1026025, at *4 (Tenn. Ct. App. Apr. 16, 2009); Anderson v. Wilder, No. E2003-00460-COA-R3-CV, 2003 WL 22768666, at *3 (Tenn. Ct. App. Nov. 21, 2003); In re Service Merchandise Co., Inc., 297 B.R. 675, 683 n.2 (Bankr. M.D. Tenn. 2002).

Generally, the financial rights of a member of the LLC are transferable in whole or in part; however, a restriction on the transfer of financial rights may be imposed in the LLC documents or by written agreement among the members. See Tenn. Code Ann. § 48-249-507 (2005). The Operating Agreement provides that in the event any member desires to transfer or assign his financial rights to a non-member, he must first give the LLC and the other members the option to purchase the financial rights at the price and terms offered by the prospective purchaser (right of first refusal). See id. at Article X, § 10.3.1. If the Class A members allow the transfer of financial rights to a non-member, this individual or entity must pay a fee to cover all reasonable expenses connected with the transfer. See id. at Article X, § 10.4. Tennessee courts have recognized that a membership interest in an LLC, even where a member cannot sell his interest without the approval of the remaining members, is an asset with value. See Inzer v. Inzer, No. M2008-00222-COA-R3-CV, 2009 WL 2263818 (Tenn. Ct. App. July 28, 2009) (valuing husband’s membership interest in an LLC in a divorce proceeding).

Applicant asserts his spouse’s 1% interest in the LLC should not be considered a resource because all income and expenses related to the LLC are currently allocated to Applicant’s spouse’s parents, and she receives no current income from the farm. As previously noted, however, the relevant inquiry in a resource determination is whether the individual could convert the property to cash rather than whether the property is currently generating income. See 20 C.F.R. § 416.1201(a) (2009); Program Operations Manual System (POMS) SI 01120.010(B). Although Applicant’s spouse acknowledges that her 1% interest in the LLC can be sold, she maintains the legal fees involved in any such sale would be greater than the value of the interest. The Act and regulations do not provide for consideration of the fees or costs associated with liquidating a resource in determining whether it is countable.

We conclude, based on the language of the Operating Agreement, that Applicant’s spouse had the right to sell her financial interest (share) in the LLC during the period at issue. Because she had the right, authority or power to liquidate her share of the property, her share would be considered a resource of Applicant under 20 C.F.R. § 416.1201(a)(1).

CONCLUSION

For the foregoing reasons, we conclude SSA could find that the interest Applicant’s spouse held in the LLC is a countable resource in determining Applicant’s eligibility for SSI payments.

M~

Regional Chief Counsel
By: Joseph P. P~, III
Assistant Regional Counsel