TN 35 (07-08)

A. Definitions

1. Legal Guardian/Conservator

A legal guardian or conservator is a third party appointed by a State court to manage the affairs of an individual who is not able to do so. The appointment of a legal guardian or conservator, however, does not necessarily mean the person is legally incompetent (for direct payment prohibitions see GN 00502.005).

NOTE: Some State courts may use the term guardian or conservator to describe the person(s) placed in charge of the affairs of a minor child or adult who is incompetent or incapable of managing his/her affairs. Refer to the State Digest of Guardianship Laws found in GN 00502.300 when reviewing the court order of appointment.

2. Statutory Guardian

A statutory guardian is a guardian usually appointed under State law to manage the assets of institutionalized persons to offset the costs of the State institution. They typically are not court appointed and are not required to account to a court for how the benefits are used. Therefore, they do not have the same standing as legal guardians.

3. Joint Guardians

Joint guardians are two or more legal or statutory guardians appointed as guardians with equal responsibility for the beneficiary.

Joint guardianship is NOT the appointment of two different and separate guardians, frequently done when one guardian of the person and a different guardian of the estate are appointed for one beneficiary. Joint guardianship gives both parties equal rights and responsibilities for the beneficiary and is so specified in the court order. Therefore, when joint guardians are appointed, both will sign the application to be named payee (for eRPS coding instructions see GN 00502.112B.2) .

4. Legal Custody

Legal custody exists when a court places an individual in the custody of an individual, institution, social agency, etc. Parents of a minor child can have joint legal custody, as decided by a court. If the child lives with each parent, both parents are considered to have custody. A parent does not have to have physical custody of a child to be awarded joint legal custody. Joint legal custody gives both parents decision-making authority for the child. Joint custody involves both joint legal and joint physical custody where both parents share the responsibility and authority for the child.

5. Voluntary Conservator

A voluntary conservator is a third party appointed by an individual through a State court to manage that individual’s assets without a finding of legal incompetence.

A voluntary conservator does not have the same legal standing as a legal guardian. Since the court makes no finding of competency, the beneficiary may not be incapable of managing benefits by our standards. However, if the beneficiary wants a voluntary conservator to be appointed as payee, we will comply with the beneficiary’s request in this unusual situation since the State court has granted the voluntary conservator the right to manage the beneficiary’s assets.

6. Power of Attorney

Power of attorney is a legal process where one individual grants a third party the authority to transact certain business for that individual.

It does not diminish the rights of the individual and does not usually grant the third party the right to manage the individual’s assets. It typically makes no finding about the individual’s capability or competence.

Power of attorney is not recognized by the Treasury Department (TD) for the purposes of negotiating federal payments, including Social Security or SSI checks (For information about TD requirements see GN 02410.010). However, the presence of a power of attorney indicates that a favorable, trusted relationship exists between the beneficiary and the person holding the power of attorney (see payee preference lists in GN 00502.105).

B. Procedure

1. Legal Guardian/Conservator

If you learn that the beneficiary has a court-appointed legal guardian:

• obtain proof of appointment, and

• advise the guardian of the beneficiary’s entitlement to benefits and of a guardian’s right to file to be appointed payee.

REMINDER: You are not required to appoint the legal guardian as payee. Appoint the person who will best serve the beneficiary.

2. Legal Guardian/Conservator Appointed After Payee Named

If a court appoints a legal guardian after a payee is already appointed for the beneficiary, notify the guardian of the name and address of the payee. If the guardian files to be payee, appoint the guardian only if he/she can better serve the beneficiary’s interests.

REMEMBER: Correct the payee coding to reflect the change in guardianship. For Correct RP Coding –MBR/SSR/eRPS processing instructions see MS INTRANETERPS 019.005.

3. Statutory Guardian

Obtain proof of appointment for a statutory guardian.

NOTE: The conditions under which the appointment was made can help you determine the beneficiary’s capability and the statutory guardian’s suitability as a payee.

4. Voluntary Conservator

Appointing a payee is never made simply as a convenience or at the choice of the beneficiary, however if the beneficiary has not been determined to be incapable and wants a voluntary conservator appointed as payee:

• obtain a signed statement from the beneficiary requesting the appointment of the conservator as representative payee,

• obtain proof of the court-appointment of the conservator,

• obtain a payee application from the conservator (For the representative payee application see GN 00502.107B.2.), and

• appoint the conservator as payee without further payee development.

CAUTION: If at any time you obtain/receive evidence that shows the appointment is not in the beneficiary’s best interests, pay the beneficiary directly or initiate capability/payee development.

5. Power of Attorney

If you learn that the beneficiary has executed a power of attorney appointing a third party to act as his or her agent to perform certain specified tasks, explain to the third party agent that a power of attorney does not authorize the agent to negotiate the beneficiary’s benefit checks and that the agent needs to file a payee application (For representative payee application see GN 00502.107). Obtain proof of the power of attorney appointment and determine the beneficiary’s capability.

Appoint the holder of a beneficiary’s power of attorney if he or she is in the best position to serve the beneficiary. (For the payee preference list, see GN 00502.105).

C. References

Digest of the State Guardianship Laws, GN 00502.300.

Definition of Common Representative Payment Terms, GN 00501.010B.