TN 2 (05-94)

A. Definition

An incompetent individual is a person who has been the subject of a judicial finding of incompetency and for whom a legal guardian has been appointed.

B. Policy

An incompetent individual may exercise the right of access on his/her own behalf.

A legal guardian may also access his/her ward's records when acting on behalf of the ward.

A representative payee does not have the same access rights as a legal guardian, but has access only to information that is necessary to discharge the duties of a payee. A representative payee's request for other information should be handled as an FOIA request.

Of course, if an individual is both a representative payee and legal guardian, whichever capacity affords the greatest access will prevail. See GN 03305.005B.1. for who may consent to the disclosure of an incompetent individual's records.

C. PROCEDURE

Provide access to an incompetent individual or to his/her legal guardian who requests access to the individual's records.

FOs and processing centers may refer to GN 00502.300 to determine whether a person is considered a “legal guardian” in various States. Refer questions about “legal guardian” status to the ARC, Programs for consideration of further referral to the Regional Chief Counsel.

ODIO may refer questions concerning whether a person is a “legal guardian” to: