SI PHI01140.215 Conservatorship Accounts - Pennsylvania

See SI 01140.215

A. Definitions

1. Conservator

The term conservator refers to a person, agency, or institution who is preserving the assets of an individual pursuant to a court order.

2. Conservatorship account

The term conservatorship account refers to a financial account in which assets are preserved for an individual pursuant to a court order.

3. Individual

The term individual refers to someone for whom a conservatorship account is held, such as a claimant or recipient, or a person whose resources are deemable to the claimant or recipient.

4. Basic need items

The term basic need items refers to elements of support and maintenance, such as food, clothing, or shelter.

B. Background

Funds may be held in conservatorship accounts in Pennsylvania for either minors or for adults who have been legally determined to be incompetent. Since State law in Pennsylvania neither requires nor prohibits the use of the funds in such accounts for the care and maintenance of the individual, presumptions must be established regarding the availability (countability) of the funds for purposes of making SSI resource determinations.

The following instructions are based on State law and our experience with the practices of courts in Pennsylvania.

C. Policy

1. Effective date

This policy is effective February 1, 1989.

2. Applying policy change

These instructions constitute a change of position from instructions that were previously provided on a case-by-case basis to field offices servicing Pennsylvania.

Follow the instructions at SI 04070.040C. when reopening and revising past determinations. Call the SSI Program Section in the regional office at (215) 597-0435 if you need assistance.

3. Minors

Funds held in conservatorship accounts on behalf of minors are presumed to be unavailable (that is, not countable) unless there is evidence to the contrary.

Evidence to the contrary shall be found to exist if the court has approved a petition to access the account for basic need items. (However, see D.4. below for cases in which a petition has been approved for other than basic need items.) Resource determinations are not to be delayed pending the outcome of a petition.

Conservators shall not be required to petition the court for the purpose of establishing evidence to the contrary.

4. Adult Incompetents

Funds held in conservatorship accounts on behalf of adult incompetents are presumed to be available (that is, countable), unless there is evidence to the contrary.

Evidence to the contrary shall be found to exist only if the court has denied a petition to access the account for basic need items. However, if a petition to access the account for basic need items is pending, application of the presumption that the funds are available will be suspended, but only until the court's decision on the petition. Do not delay making a resource decision solely because a petition is pending. In the event that a court has made a decision on such a petition, make a resource determination (see SI PHI01140.215D.6.) effective with the month after the month of the petition decision.

The disapproval of petitions to access the account for other than basic need items does not constitute evidence to the contrary.

D. Procedure

1. Establish the nature of the account

Whenever funds are being held in an account for an individual, it will be necessary to determine the nature of the arrangement under which the funds are being held; that is, be sure that you are not dealing with a trust or some type of agency relationship, etc. Allegations alone are not sufficient to resolve this issue.

The account title and any documents pertaining to the establishment of the account must be examined in order to identify the circumstances under which the account was created. At a minimum, the court order establishing the conservatorship must be obtained. For additional guidance, see the instructions in SI 01120.020 - SI 01120.022 and SI 01120.200. If you are unable to determine the status of the account, call the SSI Program Section in the regional office at (215) 597-0435 for assistance.

2. Obtain allegation

Once you establish that the account is a conservatorship account, and not some other type of asset, ask the conservator whether there have been any petitions to the court for access to the account, the purpose of the petition(s), and the outcome. Obtain this information over the conservator's signature.

3. Obtain copy of petition

Always obtain a copy of the petition and any other documentation showing the court's response. Assist the individual, as necessary. If evidence is not available, contact the SSI Program Section in the regional office at (215) 597-0435 for guidance.

4. Approved petitions in minors' cases

If a petition for basic need items for a minor has been approved, make a determination as in SI PHI01140.215D.6. that the account is an available resource in accordance with SI PHI01140.215C.3. and SI PHI01140.215E. See SI PHI01140.215D.7. if you are making a subsequent resource determination.

If a petition for other than basic need items has been approved, do not make a determination. Instead, see SI PHI01140.215I.

5. Denied petitions in adult incompetents' cases

If a petition for basic need items for an adult incompetent has been denied, make a determination as in SI PHI01140.215D.6. that the account is not an available resource in accordance with SI PHI01140.215C.4. and SI PHI01140.215F. See SI PHI01140.215D.7. if you are making a subsequent resource determination.

6. Make resource determination

Document on an SSA-5002 (Report of Contact) or an SSA-553 (Special Determination) your determination as to whether the funds in the account are a resource for SSI purposes.

7. Effective date of a subsequent resource determination

The following chart should be used to determine the effective date of a subsequent resource determination (i.e., a second or later determination based on the change of position):

Original Presumption

New Presumption

Effective Date

Available

Available

No Change

Available

Not Available

Month After Petition Decision

Not Available

Not Available

No Change

Not Available

Available

Month After Petition Decision

8. Establish conservator-ship account file

All of the evidence (e.g., the court order, conservator's statement(s), etc.) and the resource determination(s) for any such case must be maintained in a separate file marked “Conservatorship Account - DO NOT SHIP.”

Whenever the availability presumption is being redeveloped (see H. below), this file must be reviewed and the new information incorporated.

9. Code the CG field

Code the CG field with “CNSV,” along with the servicing field-office code of the office housing the conservatorship-account file. For example: CNSV,X###.

10. Establish diary

Establish a diary for the minor's attainment of age 18. Absent the establishment of the individual's incompetency, the funds held in the conservatorship account will become a countable resource the month following the month of attainment of age 18. The funds in the conservatorship account will not be income in the month of attainment. Follow the instructions in SI PHI01140.215C.4. if the individual has been adjudged incompetent.

E. Decision chart for minors

The following chart illustrates the regional presumptions in accordance with SI PHI01140.215C.3.

IF:

THEN THE FUNDS ARE PRESUMED TO BE:

1. No petition to the court has been made,

1. Not available

2. A petition for basic need items has been approved,

2. Available.

3. A petition for any purpose has been denied,

3. Not available.

4. A petition for other than basic need items has been approved

4. No presumption is appropriate.

Process as in SI PHI01140.215I.

F. Decision chart for adult incompetents

The following chart illustrates the regional presumptions in accordance with SI PHI01140.215C.4.

IF:

THEN THE FUNDS ARE PRESUMED TO BE:

1. No petition to the court has been made,

1. Available.

2. A petition for basic need items has been approved,

2. Available.

3. A petition for basic need items has been denied

3. Unavailable.

4. A petition for other than basic need items has been denied,

4. Available.

5. A petition for basic need items is pending

5. See SI PHI01140.215C.4.

G. Examples

The following examples illustrate policy and procedures for conservatorship accounts in Pennsylvania.

1. Funds assumed to be unavailable for a minor

Mrs. Brown is her minor son's representative payee. She alleges that there are funds held in an account which cannot be touched until he reaches age 18. The CR asks her about (a) the source of the funds, (b) how the account is titled, (c) who can withdraw the funds and under what circumstances, and (d) what the funds can be used for, etc. Mrs. Brown indicates that her son received the money several years ago as a result of a medical malpractice suit. The account is titled, "Sam Brown, minor, Mary Brown, natural guardian - No withdrawals prior to age 18 except upon further order of the court," which reflects the instruction in the court order. Mrs. Brown states that she has never made a petition to the court for funds from the account. The account is not a countable resource.

2. Funds assumed to be available for a minor

Same case facts as above, except Mrs. Brown states that she had successfully petitioned the court for funds to be used to meet high heating bills last winter. Mrs. Brown submits documents which support her allegation. The account is a countable resource.

3. Funds assumed to be available for an adult incompetent

Mr. Jones is the conservator for his adult daughter, who was injured in an automobile accident. He indicates that the account holding the funds received on behalf of his daughter is titled according to the court order, which stipulated that the funds could only be used with the express permission of the court. Mr. Jones has never petitioned the court for access to the account. The account is a countable resource.

4. Funds assumed to be unavailable for an adult incompetent

Same case facts as above, except Mr. Jones states that he had unsuccessfully petitioned the court for funds to purchase winter clothing for his daughter. He submits a copy of the denied petition. The account is not a countable resource.

H. Posteligibility development

Whenever an IRS alert on a conservatorship account is received or a redetermination is completed by the field office, the issue regarding whether there have been any attempts to access the funds must be redeveloped to determine what availability presumption applies. In addition, if the conservator advises that a petition has been approved or denied, a new resource determination is needed.

I. Sample letter to court - minor

Whenever the conservator alleges that a petition for other than basic need items has been approved, you should attempt to secure a statement of the court's intent with respect to petitions for basic need items, using the letter in J. below (contact the SSI Program Section in the regional office at (215) 597-0435 to obtain the sample letter in a WordPerfect file via cc:Mail).

After you have secured the court's response, submit all documentation related to the petition, including the conservator's allegation, to the SSI Program Section in the regional office for a special determination.

J. Exhibit

SAMPLE LETTER - Enter the appropriate fill-in at the

asterisk.

* (Local Address)

* (Date)

* (Judge's Name and Address)

Dear Judge *:

Re: * (Child's Name)          Docket No. *

The Supplemental Security Income (SSI) program pays monthly cash benefits to children with limited income and resources who have been determined to be blind or disabled under the provisions of the Social Security Act. If the child has countable income, the amount of the SSI payment is reduced or he/she may be found ineligible.

In addition to the income considerations, there is a limit on the value of resources that an individual can own; presently, the limit for an individual is $2,000. However, not all of the income and/or resources of the child are necessarily considered (i.e., by law, certain items may be excluded from consideration or may not meet the definition of income and/or resources).

We are in the process of determining *'s (Child's Name) eligibility for SSI, but we need your help in clarifying the availability of the funds held for him/her under the court order which was issued by you on * (Date). Specifically, we need to know whether the funds held under your order would be made available for the child’s support and maintenance if the custodian of the funds submitted a petition to access the account in order to provide him/her with food, clothing, or shelter. If either the principal or interest were available, the child’s SSI eligibility or payment amount could be affected. In this context, we note that you approved a petition on * (Date) for the purpose of providing the child with * (Purpose of Approved Petition).

You may use the space provided on the next page for your response. If you have any questions, please feel free to contact * (Contact Person in SSA) in the * (Local SSA Office) Social Security Office on * (Telephone Number).

Sincerely,

(Name)

(Title)

Social Security Administration

* (Local Address)

Re: * (Child's Name) Docket No. *

1. Would you approve a petition for withdrawal of any or all of the funds set aside for * (Child's Name) for the purpose of providing him/her with food, clothing, or shelter?

PLEASE CIRCLE: YES or NO

2. Is the interest earned on the funds set aside for * (Child's Name) available to the custodian for use on behalf the child without your approval?

PLEASE CIRCLE: YES or NO

SIGNATURE: __________________________

DATE: ________________________________


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SI PHI01140.215 - Conservatorship Accounts - Pennsylvania - 02/08/2013
Batch run: 02/08/2013
Rev:02/08/2013