You have requested an updated opinion on the State Digest of Guardianship Laws in
POMS 00502.300. Specifically, you have asked whether the appointment of a guardian
or conservator allows SSA to assume a person is incompetent or incapable.
It is our opinion that a beneficiary for whom a guardian has been appointed should
be assumed to be incompetent and no further development is needed. However, a person
for whom a conservator has been appointed is not necessarily incompetent or incapable
and further development may necessary. We note that this office has previously issued
two opinions on this issue, in March 1984 and January 1986. See Memorandum from Regional
Chief Counsel, Region VIII, to Regional Commissioner, Region VIII, State Guardianship
Laws-Colorado (January 15, 1986); Memorandum from Regional Chief Counsel, Region VIII,
to Office of Retirement and Survivors, Opinion on State Guardian/Conservator Appointments
for Representative Payment Purposes-Digest of State Laws Within Region VIII, RA VIII
(March 15, 1984). Since those opinions were written, the statutes pertaining to guardianships
and conservatorships have been revised. The changes in the guardianship laws eliminated
any ambiguity as to whether a person for whom a guardian was appointment could be
considered legally incompetent.
In essence, your inquiry involves a question of when SSA must pay benefits to a representative
payee. According to the Commissioner's regulations, SSA pays benefits to a representative
payee if SSA has “information that an adult beneficiary is (1) legally
incompetent or mentally incapable of managing benefit payments;
or (2) physically incapable of managing or directing the management
of his or her benefit payments.” 20 C.F.R. §§ 404.2001, 416.601 (2002).
If SSA “learn[s] that a beneficiary has been found to
be legally incompetent, a certified copy of the court's determination
will be the basis of our determination to make representative payment.” 20 C.F.R. §§ 404.2001, 416.601 (2002); see also POMS GN 00502.05. Since the court
to which the regulations refer is a State court, SSA must look to the laws of the
State, in this case, Colorado, to determine whether an order establishes that a person
is legally incompetent. Generally, in Colorado, a person's competency is determined
in a guardianship or a conservatorship hearing.
In Colorado, the appointment of a guardian is appropriate only for an “incapacitated person.”
(1) The court may: (a) Appoint a limited or unlimited guardian for a respondent only
if it finds by clear and convincing evidence that: (I) The respondent is an incapacitated
person; and (II) The respondent's identified needs cannot be met by less restrictive
means, including use of appropriate and reasonably available technological assistance;
or (b) With appropriate findings, treat the petition as one for a protective order
under section 15-14-401, enter any other appropriate order, or dismiss the proceeding.
Colo. Rev. Stat. § 15-14-311 (2000).
“Incapacitated person” means an individual other than a minor, who is unable to effectively receive or evaluate
information or both or make or communicate decisions to such an extent that the individual
lacks the ability to satisfy essential requirements for physical health, safety, or
self-care, even with appropriate and reasonably available technological assistance.
Id. § 15-14-102.
Colorado does not define the term “legally incompetent.” Nevertheless, we believe, consistent with our prior opinions, that a finding that
a person is incapacitated is tantamount to finding the person is legally incompetent
for the purposes of SSA. Since guardians may only be appointed for incapacitated individuals,
court appointment of a guardian is sufficient to find that payments must be made to
a representative payee.
Please note that our opinion regarding the effect of a guardian appointment is not
the same as our opinions issued in 1984 and 1986. In those opinions, we opined “a determination that a guardian should
be appointed for an individual does not necessarily mean that he
or she has been adjudged legally incompetent.” See Memorandum from Regional Chief Counsel, Region VIII, to Regional Commissioner,
Region VIII, State Guardianship Laws-Colorado (January 15, 1986). Under the law in
effect at that time, “Incapacitated person
'mean[t] any person who is impaired by reason of mental illness,
mental deficiency, physical illness or disability, chronic use of
drugs, chronic intoxication, or other cause (except minority) to
the extent that he lack[ed] sufficient understanding or capacity
to make or communicate responsible decisions concerning his person.” Colo. Rev. Stat. § 15-14-102 (1999). Under the previous definition, it was unclear
that a person for whom a guardian was appointed would be considered legally incompetent
for SSA's purposes.
You have asked also whether the appointment of a conservator or limited conservator
establishes that a person is “legally
incompetent” or “incapable.” “'Conservator'
means a person. . . who is appointed by a court to manage the estate
of a protected person. The term includes a limited conservator.” Colo. Rev. Stat. § 15-14-102 (2000). A person in need of the protection of a conservatorship
(b) Any individual, including a minor, if the court determines that, for reasons other
than age: (I) by clear and convincing evidence, the individual is unable to manage
property and business affairs because the individual is unable to effectively receive
or evaluate information or both or to make or communicate decisions, even with the
use of appropriate and reasonably available technological assistance, or because the
individual is missing, detained, or unable to return to the United States; and (II)
by a preponderance of evidence, the individual has property that will be wasted or
dissipated unless management is provided or money is needed for the support, care,
education, health, and welfare of the individual or of individuals who are entitled
to the individual's support and that protection is necessary or desirable to obtain
or provide money.
Colo. Rev. Stat. § 15-14-401 (2000). “The appointment
of a conservator or the entry of another protective order is not
a determination of incapacity of the protected person.” Id. § 15-14-409 (2000). Consequently, the appointment of a conservator is not a finding
of legal incompetence.
However, the appointment of a conservator may be evidence of incapability. “Capability refers to a beneficiary's ability
to manage or direct the management of his/her Social Security funds.” POMS GN 00502.10. There are circumstances where a conservator may be appointed which
do not implicate a beneficiary's ability to manage or direct his or her benefits.
For example, a conservator may be appointed if an individual is detained or unable
to return to the United States. See Colo. Rev. Stat. § 15-14-401 (2000). On the other
hand, a conservator may be appointed for an individual who is incapable. If the order
appointing a conservator specifically identifies the reasons for the appointment,
there may be enough information to determine whether a beneficiary is incapable. If
the order does not specifically identify the reason for the appointment, further development
is needed to determine the reason for the appointment of the conservator.
In sum, we believe that appointment a representative payee is always appropriate where
a guardian has been appointed for an adult. Further development is always needed where
a conservator has been appointed.
Yvette G. K~
Acting Regional Chief Counsel, Region
Allan D. B~
Assistant Regional Counsel