You inquired whether Michelle D. B~ (Michelle), disabled adult child of Harry A. B~,
should be considered legally incompetent for purposes of giving her partial guardian,
Rosemary T. B~, the right to reconsideration of a representative payee decision. We
conclude that, under the facts of this case, Michelle should be considered legally
incompetent and reconsideration rights should be accorded to her partial guardian.
You also inquired whether a revision should be made to the information regarding Michigan
State law at GN 00502.700(C) of the POMS, now POMS GN 00502.300(C). See AO 10010.075, May 1997 (reorganization of material in POMS sections). We are, therefore, including
suggestions for revisions.
Michelle is a disabled adult child entitled to benefits on the earnings record of
her father. Prior to March 1996, Michelle's mother, Rosemary T. B~ (Rosemary), was
Michelle's representative payee. Effective March 1996, the Michigan Department of
Mental Health was appointed as Michelle's representative payee. Rosemary, through
her attorney, requested reconsideration of the representative payee decision. Subsequently,
she submitted a copy of Letters of Guardianship, issued on March 1, 1995, by the Macomb
County, Michigan Probate Court, appointing Rosemary as "partial guardian of the person"
of Michelle D. B~. The accompanying court order states that Michelle is a "developmentally
disabled person" and is partially without capacity to care for her person. In the
space provided for enumeration of those tasks, responsibilities, and judgments that
Michelle is without capacity to perform, there is no enumeration, except for the comment
"See those powers specifically granted to partial guardian." The powers granted to
Rosemary as partial guardian are indicated on a checklist and include the power to
consent to necessary medical treatment; to make all legal, contractual, and financial
decisions; to make program and placement decisions and living arrangements; and to
transact and supervise any and all financial matters including collecting and expending
funds and entering into contractual agreements. Michelle retained the right to make
decisions on daily dress and daily activities and on financial matters involving $10.00
SSA dismissed Rosemary's request for reconsideration. The rationale for the dismissal
of Rosemary's request was that Michelle had not been declared legally incompetent
and, therefore, Rosemary was not entitled to request reconsideration of the payee
decision. See 20 C.F.R. § 404.903(c)(denying a request to be made representative payee
is not an "initial determination").
A social security beneficiary has a right to appeal a representative payee decision.
42 U.S.C. § 405(j)(2)(E)(i), 20 C.F.R. § 404.902(o), (q). The Social Security Act
requires written notice of the right to appeal to be sent to the beneficiary, except
under certain conditions. Where the beneficiary is "legally incompetent" the notice
of appeal rights must be sent to the beneficiary's legal guardian or legal representative.
42 U.S.C. §§ 405(j)(2)(E)(ii)-(iii).
"Legal incompetency" is defined in the POMS as "a decision by a court of law that
a claimant is unable to manage his/her affairs." POMS GN 00501.010. See also Memorandum (Altman) RA:V, SSA 84/79 to RSI, Division of Payment and Adjudicative
Policy (4-13-84). The appointment of a legal guardian for a claimant does not necessarily
mean that the claimant is legally incompetent. POMS GN 00502.139. In addition, not every State uses the term "legal incompetency" or attributes the
same meaning to the term as SSA does. Therefore, guidelines for determining what constitutes
a court's finding of legal incompetence in any particular State are provided at POMS
Dismissal of Rosemary's request for reconsideration of the payee decision was based
on the POMS guidelines for the State of Michigan. Those guidelines list certain conditions
which, if found by the court to exist, constitute a finding of legal incompetence.
Several conditions are listed, including legal incapacity, mental illness, and mental
deficiency. The terms indicated for persons appointed under those conditions include
guardian and conservator. Id. A footnote clarifies that an appointment of a conservator constitutes a finding of
legal incompetence only if the court order states that the person is unable to manage
his/her property or affairs effectively because of conditions which are listed. Id. at note 9. The guidelines also list conditions which a court may find to exist but
which do not constitute a finding of legal incompetence and for which a conservator,
partial guardian, or limited guardian may be appointed. POMS GN 00502.300(C)(Michigan).
Apparently, because the court appointed Rosemary a "partial guardian" and the court's
order showed Michelle as a "developmentally disabled person," not as a "legally incapacitated"
person, SSA personnel concluded that there was no court finding of legal incompetence
and, therefore, only Michelle had the right to request reconsideration of the payee
decision. The issue is whether the court order demonstrates, on its face, that the
court made a finding equivalent to what SSA considers "legal incompetency", i.e.,
whether the court has found the claimant is unable to manage her own affairs.
Michigan statutes use the term "legally incapacitated person" which is defined in
the Michigan Probate Code as "a person, other than a minor who is impaired by reason
of mental illness, mental deficiency, physical illness or disability, chronic use
of drugs, chronic intoxication, or other cause, to the extent that the person lacks
sufficient understanding or capacity to make or communicate informed decisions concerning
his or her person." Mich. Comp. Laws § 700.8(2)(West 1995). That definition applies
for purposes of the probate code, including guardianship and protective proceedings.
Id. Where a court order specifically states that a person has been found to be "legally
incapacitated", we consider such a finding to be equivalent to a finding of "legal
incompetence" as that term is used in the Social Security Act and the Social Security
regulations. See Memorandum (Altman) RA:V, SSA 84/79 to RSI, Division of Payment and
Adjudicative Policy (4-13-84).
The Michigan Probate Code provides for appointment of a "guardian" where there is
clear and convincing evidence that an individual "is a legally incapacitated person,
and that the appointment is necessary as a means of providing continuing care and
supervision of the person of the legally incapacitated person." Mich. Comp. Laws 700.444(1)(West
1995). The powers, rights, and duties of a guardian of a legally incapacitated person
are enumerated in Mich. Comp. Laws § 700.455 (West 1995).
The implication to be drawn from the language of the above cited sections is that,
whenever the court appoints a "guardian" the ward is necessarily "legally incapacitated"
and, therefore, "legally incompetent" for SSA purposes. However, other sections of
the Michigan Probate Code and the Michigan Mental Health Code appear to limit that
interpretation. The Michigan Probate Code also allows appointment of a "limited guardian"
who has "fewer than all of the legal rights and powers of a full guardian, and whose
rights, powers and duties have been specifically enumerated by court order." Id. at § 700.8(3). The Michigan Mental Health Code defines two types of guardianship.
A "plenary guardian" has all the legal rights and powers of a full guardian and is
appointed where the court finds that the individual is "totally without capacity to
care for himself or herself or [his or her] estate". Mich. Comp. Laws §§ 330.1600(i)
(West Supp. 1997), 330.1618(5)(West 1992). A "partial guardian" has "fewer than all
of the legal rights and powers of a plenary guardian," having only those rights, powers,
and duties which are specifically enumerated by court order. Mich. Comp. Laws § 330.1600(j)(West
The Michigan Mental Health Code defines "developmental disability" as "an impairment
of general intellectual functioning or adaptive behavior" that meets certain criteria,
including that the impairment "constitutes a substantial burden to the impaired person's
ability to perform normally in society." Mich. Comp. Laws §§ 330.1500(i), 330.1600(e).
(West 1992). Section 330.1602 requires that guardianship for a developmentally disabled
person "shall be ordered only to the extent necessitated by the individual's actual
mental and adaptive limitations" and that partial guardianship is the preferred form
of guardianship for a developmentally disabled individual. Mich. Comp. Laws § 330.1602
(West Supp. 1997). Where the court finds that a person is developmentally disabled
and lacks the capacity to do some, but not all, of the tasks necessary to care for
herself or her estate, the court appoints a partial guardian. Mich. Comp. Laws § 330.1618(4)(West
Section 330.1620 states, "The appointment of a partial guardian under this chapter
does not constitute a finding of legal incompetence or incapacity except in those
areas specified by the court." Mich. Comp. Laws § 330.1620(3) (West Supp. 1997). An
individual with a developmental disability retains "all legal and civil rights" except
those that the court order designates as legal disabilities or that have been specifically
granted to the partial guardian. Id. at § 330.1620(2). Thus, it appears that the conclusion that appointment of a guardian
equates to a court finding of legal incompetence for SSA purposes, while valid where
there is a plenary or full guardianship, should not be extended to cases where a "limited
guardian" or a "partial guardian" have been appointed, unless legal incompetence is
apparent from the court's findings, i.e., the court's specific findings make it clear
that the ward is unable to manage his/her affairs.
In Michelle's case, although the court did not state that it made a finding of "legal
incapacity" it did give the partial guardian substantially all rights and powers that
a full guardian of a legally incapacitated person would be given. See Mich. Comp.
Laws § 700.455 (West 1995). The powers reserved to Michelle are minimal and do not
give her any power to manage her financial matters or decide about matters concerning
her support and maintenance, except to the extent that she can make decisions regarding
financial matters involving less than $10.00. Therefore, we think that the court's
order, while appointing Rosemary as partial guardian rather than plenary or full guardian,
still establishes that Michelle is "legally incompetent" within the meaning of the
Social Security Act. We therefore, recommend that Rosemary be given the right to reconsideration
of the representative payee decision.
You have also requested advice regarding possible revision to the Michigan portion
of POMS GN 00502.300(C), Digest of State Guardianship Laws. We suggest that "partial guardianship" and
"limited guardianship" be listed under both paragraphs, just as "conservator" is listed
under both paragraphs and that footnote 9 be amended and made referable to all three
terms as they appear in the first paragraph, rather than to the term "conservator"
alone. We suggest that the text of footnote 9 be amended to indicate that the appointment
of a conservator, limited guardian, or partial guardian does not, by itself, constitute
a finding of legal incompetence, unless the court order specifies that the court determined
the person is unable to manage his/her property or affairs effectively because of
conditions which are listed. Where the court order indicates that the person is only
partially without capacity to care for his/her person or estate, do not conclude that
the order constitutes a finding of legal incompetence unless it can be determined
with certainty — from the specific rights, powers, and duties granted to the partial
guardian or limited guardian — that the person is unable to manage his/her property