TN 7 (03-02)

A. Policy

When an individual is appointed a legal guardian for a competent or incompetent beneficiary, part of the beneficiary's funds may be used for customary guardianship costs (or proceedings) and court-ordered fees, provided:

• the guardianship appears to be in the beneficiary's best interests,

• the beneficiary's personal needs are met first, and

• the beneficiary's funds would not be depleted by the guardianship costs.

NOTE: Conservator and conservatorship are the same as guardian and guardianship.

IMPORTANT: The legal guardian of a beneficiary may also be an organizational payee that has fee-for-service status. If the payee questions whether they can collect guardianship fees and a fee from the beneficiary's Social Security/SSI benefits for providing rep payee services, refer to GN 00506.220 which describes the policy and restrictions on collecting a fee for payee services.

B. Procedure

When a change in law or State practice results in ad hoc or large-scale appointment of legal guardians, carefully examine the expenditures for each case. If the appointments are simply for the convenience of the institution or agency, payment of guardianship fees out of the beneficiary's funds may not constitute a proper use of benefits.

There are several situations where the payment of legal guardianship fees would not constitute proper use:

• The guardianship cost and fees are included as part of a State's support obligation to the beneficiary.

• The costs or fees relate to an unsuccessful petition for guardianship.

• The beneficiary's funds will be depleted by the guardianship costs to the point where there are unmet personal needs.

The many variables affecting the amount of guardianship fees (e.g., the amount and type of assets owned by the beneficiary and the applicable State and local laws) make it difficult to provide guidelines on what constitutes “excessive” guardianship fees. Decide each case on its merits.

If the guardianship and attorney fees represent services in connection with the beneficiary's total estate (i.e. all real and personal property owned by the beneficiary) and have been approved by the court, take no further action if the benefits are only a small part of the estate.

In those cases in which the Social Security benefits represent at least 50 percent of the estate, and the costs associated with the guardianship proceedings and/or attorney fees appear excessive in light of the beneficiary's income and resources, refer the case to the appropriate regional chief counsel (RCC) through the regional office program staff, for review. See SI 00810.120D. for discussion of guardianship fees in the SSI program.