PR 07105.007 Colorado
A. PR 03-120 Treatment of Guardianships and Conservatorships for the Purpose of Appointing a Representative Payee
DATE: April 22, 2003
Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency are: incapacitated person 20 Term for Person Appointed is: Guardian
Conditions Under Which Ruling/Appointment Does Not Constitute a Finding of Legal Incompetency are: individuals (adult or minors) unable to manage property and business affairs due to lack of understanding or capacity to make or communicate responsible decisions even with available technological assistance; missing, detained or unable to return to U.S.
Terms For Person Appointed are: Conservator, Limited Conservator
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 is
(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