QUESTIONS PRESENTED
               1) Does a court order that declares that Mary W~ is a “protected person” under West
                  Virginia Code § 44A-1-4, and appoints a guardian and conservator without limitation
                  establish that Mary W~ is legally incompetent for purposes of appointing a representative
                  payee?
               
               2) Can the state of West Virginia compel the Social Security Administration (SSA)
                  to select the Sheriff of Kanawha County, the court named conservator for Ms. W~, as
                  representative payee for Ms. W~’s benefits?
               
               ANSWER 
               1) Yes. Based on the material you provided and the law of West Virginia, Ms. W~ is
                  legally incompetent, and SSA should appoint a representative payee for her SSI payments.
               
               2) No. A state court order cannot supersede federal law, specifically the Social Security
                  regulations, regarding the selection of a representative payee. We have requested
                  that the United States Attorney’s Office file a motion to remove the matter from state
                  court to federal court, and then file a motion to dismiss.
               
               BACKGROUND
               On January 11, 2011, the Circuit Court of Kanawha County, West Virginia, found that
                  Mary W~ (SSN ~) is a “protected person,” and appointed a guardian and conservator
                  without limitation. In reaching this finding, the court adopted the entire “Findings
                  and Recommendations” of the Mental Hygiene Commissioner. [1]
               The court found that Ms. W~, who is 87, suffers from dementia. The court also noted
                  that she hoards items in her home, is overdue on all of her utilities, and cannot
                  account for her income or where she banks. Ms. W~ currently lives at her residence,
                  and the West Virginia Department of Health and Human Services is seeking appropriate
                  placement. See Motion to Compel, #7. Jami G~, M.D., a licensed physician, submitted an affidavit stating that Ms.
                  W~ is unable to handle her affairs due to her dementia. She needs assistance with
                  managing her finances, taking her medication, and caring for herself. Based on this
                  evidence, the court concluded that “[t]here is no less restrictive alternative to
                  the appointment of a guardian and conservator to handle her affairs.”
               
               The court appointed the West Virginia Department of Health and Human Services as Ms.
                  W~’s guardian, and the Kanawha County Sheriff’s Department as her conservator. Both
                  appointments were made “without limitation.”  See Court Order, At the time of the hearing, there were no other people or agencies available or willing
                  to be appointed. See Recommendations, The court order does not specify the termination of these appointments, and no evidence
                  suggests that these appointments have been terminated.
               
               SSA denied the Sheriff Department’s application to be representative payee on February
                  28, 2011. The Sheriff’s Department filed a request for reconsideration in April 2011.
                  No final decision has been made based on the evidence provided. On April 13, 2011,
                  the Sheriff of Kanawha County filed a motion in the Circuit Court of Kanawha County
                  to compel SSA to appoint the Sheriff’s Department as representative payee.
               
               Discussion
               1. The Court Order is Sufficient Evidence of Legal Incompetency that Would Prohibit
                     Direct Payment Under the Social Security Regulations.
               For purposes of agency records, we recommend that you find Ms. W~ to be legally incompetent
                  based on the January 11, 2011 court order.
               
               Social Security regulations state that if an individual is legally incompetent, the
                  individual is prohibited from receiving Social Security benefit payments directly.
                  See 20 C.F.R. §§ 416.601, 416.610(a)(1) (2010); Programs Operation Manual System (POMS)
                  GN 00501.005. “Evidence of legal incompetence usually takes the form of a court order appointing
                  a legal guardian.” POMS GN 00501.005A.2. However, the court order must either 1) specifically address the beneficiary’s competency
                  (or represent a finding of legal incompetence), or 2) contain a statement regarding
                  the individual’s ability to handle her financial affairs. Id.  The Digest of State Guardianship Laws also provides guidance on when a court order
                  is sufficient evidence of legal incompetence. See POMS GN 00502.005A.2, GN 00502.300C. [2] If the court order establishes that an individual is legally incompetent, and the
                  order is less than one year old, the agency should determine that the beneficiary
                  is legally incompetent. POMS GN 00502.005B.4. Here, the January 11, 2011 court order is sufficient evidence to establish legal
                  incompetency for the following reasons.
               
                a. The Court Order Includes a Specific Finding to Indicate Legal Incompetency. 
               Although the court order does not specifically include the words “legally incompetent”
                  or “mentally incompetent,” it nevertheless represents a specific finding that Ms.
                  W~ is legally incompetent.
               
               “Legal incompetency is a decision by a court of law that a claimant is unable to manage
                  his/her affairs.” POMS GN 00501.010(7). When appointing a guardian and/or conservator, West Virginia law has abandoned
                  use of the term “mentally incompetent,” and instead utilizes the term “protected person”
                  in its judicial findings regarding capacity. See W. Va. Code § 44A-1-2 (2011) (stating that individuals found to be “mentally incompetent,”
                  “intellectually disabled,” or “mentally handicapped” under previous law are now “deemed
                  to be ‘protected person[s]’”).
               
               West Virginia defines a “protected person” as an adult individual who, because of
                  a mental impairment, is “unable to receive and evaluate information effectively or
                  to respond to people, events, and environments to such an extent that the individual
                  lacks the capacity: (A) To meet the essential requirements for his or her health,
                  care, safety, habilitation, or therapeutic needs without the assistance or protection
                  of a guardian; or (B) to manage property or financial affairs or to provide for his
                  or her support or for the support of legal dependents without the assistance or protection
                  of a conservator.” W. Va. Code § 44A-1-4(13) (2011).
               
               Here, the court’s finding that Ms. W~ meets the definition of a “protected person”
                  who required both a guardian and conservator is a finding that she is legally incompetent.
                  As noted above, a “protected person” is an individual who lacks the capacity to meet
                  the essential requirements for health, care, safety, habitation, or therapeutic needs,
                  such that she requires a guardian, or to manage property or financial affairs, such
                  that she needs a conservator. W. Va. Code § 44A-1-4(13). The court’s finding that
                  Ms. W~ meets the definition of a “protected person” requiring a guardian and conservator
                  without limitation, therefore, is a specific finding by the court that she was “unable
                  to manage her affairs.” This is wholly consistent with the POMS definition of legal
                  incompetency.
               
               b. The Court’s Appointment of a Conservator Without Limitation Indicates that Ms.
                     W~ is Unable to Manage Her Financial Affairs. 
               A court order that includes “statements concerning the beneficiary’s ability to handle
                  [her] financial affairs [or] responsibilities” also establishes legal incompetency.
                  POMS GN 00502.005B.1. By finding that Ms. W~ is a “protected person” who required a conservator without
                  limitation, the court implicitly found that she “lacks the capacity . . . to manage
                  property or financial affairs or to provide for [her] support.” W. Va. Code § 44A-1-4(13).
               
               In West Virginia, the least restrictive type of guardian or conservator must be appointed.
                  See W. Va. Code § 44A-2-10 (“A guardianship or conservatorship appointed . . . shall be
                  the least restrictive possible, and the powers shall not extend beyond what is absolutely
                  necessary for the protection of the individual.”). For example, a limited guardian
                  is appointed when the individual retains some mental capacity to handle her personal
                  affairs. See id. § 44A-2-11 (stating that a limited guardianship is appropriate when the individual
                  is “capable of addressing some of the essential requirements for [her] health, care,
                  safety, habitation, or therapeutic needs”). Here, however, the court appointed a guardian
                  and conservator without limitation, and explicitly noted that “[t]here is no less
                  restrictive alternative.” This appointment essentially removes all decision-making
                  authority from Ms. W~. The court’s finding that the least restrictive guardian and
                  conservator that must be appointed was an appointment without limitation makes clear
                  that the court believed Ms. W~ is unable to manage her affairs, and therefore, is
                  legally incompetent.
               
               2. The West Virginia State Court Cannot Compel the Social Security Administration
                     to Appoint the Sheriff as Representative Payee Because the Court Does Not Have Subject
                     Matter Jurisdiction To Enter A Valid, Enforceable Judgment. 
               Although a West Virginia circuit court appointed the Sheriff’s department to be Ms.
                  W~’s conservator, SSA retains the exclusive responsibility for appointing Ms. W~’s
                  representative payee.
               
               The Supremacy Clause of the U.S. Constitution establishes that a federal law – in
                  this case, the Commissioner’s regulations – supersedes contradictory state law. U.S.
                  Const. Art. VI, § 2. The Commissioner’s regulations state that SSA has the exclusive
                  responsibility to select a representative payee for a claimant. Congress enacted the
                  Social Security Act (Act), which granted the Commissioner of SSA the "full power and
                  authority to make rules and regulations and establish procedures" consistent with
                  the Act to carry out the provisions thereof. 42 U.S.C. § 405(a). "[W]hen a statute
                  speaks clearly to the issue at hand, [courts] 'must give effect to the unambiguously
                  expressed intent of Congress.'" Barnhart v. Thomas, 540 U.S. 20, 26 (2003), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The language of the Act clearly establishes that the
                  Commissioner of SSA may promulgate regulations and establish procedures to carry out
                  the provisions of the Act.
               
               Pursuant to his statutory authority, the Commissioner’s regulations establish the
                  procedures for appointing a representative payee. “A representative payee may be either
                  a person or organization selected by us to receive benefits on behalf of a beneficiary.” 20 C.F.R. § 416.601(a) (emphasis
                  added). “If the beneficiary is a legally incompetent individual, we may appoint the
                  legal guardian or some other person as representative payee.” 20 C.F.R. § 416.601(b)(2). Because the regulations clearly
                  state that it is the exclusive responsibility of the agency to select a representative
                  payee, and that the agency need not select a legal guardian to serve as payee, the
                  court cannot compel the agency to appoint Ms. W~’s conservator as her representative
                  payee.
               
               The POMS further confirm that the agency does not have to select a legal guardian
                  to serve as representative payee. “The [field office] FO is responsible for finding
                  the person or organization best suited to be payee.” POMS GN 00502.100. While a legal guardian can file to be appointed payee, the agency is not required
                  to appoint the legal guardian. POMS GN 00502.139. The representative payee should be the “person who will best serve the beneficiary”
                  Id. The guardian should be appointed only if he/she can better serve the beneficiary’s
                  interests. POMS GN 00502.139. Based on the materials provided, the Sheriff did not provide any information, beyond
                  the court order, to prove her ability to serve the beneficiary’s interest. However,
                  nothing suggests that the Sheriff’s Department could not serve Ms. W~’s interests
                  as her representative payee. The court decision states that no other parties were
                  available to serve as guardian, but Ms. W~ told the field office that she has two
                  nephews, Robert S~ and Charles D~, who regularly contact her. Although the court notified
                  Ms. W~’s “next of kin,” it is not clear that either of these individuals were contacted.
                  SSA can appoint the Sheriff’s department as representative payee if it will best serve
                  Ms. W~’s interests.
               
               Accordingly, while the state has the authority to designate who may serve as an individual’s
                  guardian and/or conservator, the state does not have the authority to select a representative
                  payee for a claimant’s benefits. Thus, a contradictory state court order appointing
                  the Sheriff as representative payee would not have any legal effect. The United States’
                  Attorneys Office will file a motion to remove the motion to compel appointment as
                  representative payee from state court to federal court, and will then file a motion
                  to dismiss the motion to compel.
               
               CONCLUSION
               Based on the January 11, 2011 court order appointing a guardian and conservator without
                  limitation, we recommend that you consider Ms. W~ to be legally incompetent for purposes
                  of appointing a representative payee. However, the court cannot compel the agency
                  to appoint the Sheriff’s Department as Ms. W~’s representative payee. 
 Eric P. K~, 
 Regional Chief Counsel 
 By: ___________________________
               
               Shannon P~
               Assistant Regional Counsel