The opinion finds that the Social Security Administration (“the Agency”) can accept both Oregon’s Letters of Guardianship and Letters of Conservatorship forms as legal evidence of incapability for the purpose of determining the need for a representative payee, despite the fact that the new documents do not specify the protected person is financially incapable or legally incompetent. These forms certify the appointment of a qualified guardian or conservator for a protected person whom the court has found by clear and convincing evidence is either (1) a minor in need of a guardian, (2) incapacitated, or (3) a minor or financially incapable adult with property that requires management or protection. O.R.S. §§ 125.305(1), 125.400. Thus, protected persons subject to these fiduciary appointments should satisfy the Agency’s criteria for the need for a representative payee. 20 C.F.R. §§ 404.2010, 416.610.

QUESTION PRESENTED

Whether the Social Security Administration (“the Agency”) can accept Oregon’s new conservatorship/guardianship documents as legal evidence of incapability for the purpose of determining the need for a representative payee, where the new documents do not specify that the protected person is financially incapable or legally incompetent.

BRIEF ANSWER

Yes, the Agency can accept Oregon’s new conservatorship/guardianship documents as legal evidence of an individual’s incapability for the purpose of determining the need for a representative payee in Oregon.

SUMMARY OF FACTS

The state of Oregon recently modified its court conservatorship/guardianship documents. Unlike the previous forms, the new documents, entitled “Letters of Guardianship” and “Letters of Conservatorship,” do not specify that the “protected person” is financially incapable or legally incompetent.

ANALYSIS

1. A. 

   Relevant Authority

   1. 1. 

      Agency Benefit Payments to a Representative Payee

      The Agency will appoint a representative payee if it determines that “the beneficiary is not able to manage or direct the management of benefit payments in his or her interest.” 20 C.F.R. §§ 404.2001(a), 416.601(a). The Agency appoints a representative payee on behalf of a beneficiary 18 years old or older if it has information that the 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. §§ 404.2010, 416.610.

      Generally, if a beneficiary is under age 18, the Agency will pay benefits to a representative payee. Id. at (b). However in certain situations, the Agency will make direct payments to a beneficiary under age 18 who shows the ability to manage the benefits. Id.

      The Agency considers various sources of information in determining whether to make representative payment, including court determinations. 20 C.F.R. §§ 404.2015, 416.615. “If we learn 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.” Id. at (a).

   2. 2. 

      Oregon Guardianship Appointment

      In Oregon, a petitioner seeking the appointment of a fiduciary must file a petition and designate the type of fiduciary requested. O.R.S. § 125.055(1). A “fiduciary” means a guardian or conservator appointed under the laws of Oregon. O.R.S. § 125.005(2). A guardian may be appointed to be responsible for the “person” of a protected person; while a conservator may be appointed to be responsible for the protected person’s estate.

      The court may appoint a guardian if it determines by clear and convincing evidence that (a) the respondent is a minor in need of a guardian or the respondent is incapacitated; (b) the appointment is necessary as a means of providing continuing care and supervision of the respondent; and (c) the nominated person is both qualified and suitable, and is willing to serve. O.R.S. § 125.305(1); Schaefer v. Schaefer, 183 Or. App. 513, 517, 52 P.3d 1125 (2002) (a person over whom a petitioner seeks to establish a guardianship enjoys a presumption of competency, which must be overcome by clear and convincing evidence, that is, evidence of “extraordinary persuasiveness.”) (citations omitted). A “minor” is defined as any person who has not attained 18 years of age. O.R.S. § 125.005(6). “Incapacitated” is defined as “a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety.” O.R.S. § 125.005(5); POMS GN 00502.300. “Meeting the essential requirements for physical health and safety” is defined as those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur. O.R.S. § 125.005(5).

      Among the guardian’s powers and duties is the duty to take reasonable care of the person’s personal effects unless a conservator has been appointed. O.R.S. § 125.315(1)(b). The guardian may receive money and personal property deliverable to the protected person; apply the money and property for support, care, and education of the protected person; and exercise care to conserve any excess for the protected person’s needs. Id. at (f).

      After the filing of acceptance of the guardianship appointment (and bond that may be required), the court must issue Letters of Guardianship to the guardian. O.R.S. § 125.310. A copy of the order appointing the guardian must be attached to the Letters of Guardianship. Id. Per O.R.S. § 125.310, the Letters of Guardianship must be in substantially the following form:

      State of Oregon,	)	​
      ​	)	LETTERS OF
      County of _______________	)	GUARDIANSHIP

      BY THESE LETTERS OF GUARDIANSHIP be informed:

      That on _____ (month) _____ (day), 2_____, the _______ Court, _____ County, State of Oregon, appointed _______ (name of guardian) guardian for _______ (name of protected person) and that the named guardian has qualified and has the authority and duties of guardian for the named protected person as provided in the order appointing the guardian, a copy of which is attached to these letters.

      IN TESTIMONY WHEREOF, I have subscribed my name and affixed the seal of the court at my office on _____ (month) _____ (day), 2_____. (Seal)

      _____________, Clerk of the Court

      By _____________, Deputy

   3. 3. 

      Oregon Conservatorship Appointment

      In Oregon, “Upon the filing of a petition seeking the appointment of a conservator, the court may appoint a conservator . . . if the court finds by clear and convincing evidence that the respondent is a minor or financially incapable, and that the respondent has money or property that requires management or protection.” O.R.S. § 125.400. “Financially incapable” is defined as a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power, or disappearance. O.R.S. § 125.005(3). “Manage financial resources” means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.” Id.

      Among the conservator’s powers and duties is the power to take possession of all of the protected person’s property of substantial value, including income and proceeds from the sale of property, and to permit the protected person to retain possession and control of the property, as appropriate. O.R.S. § 125.420. The conservator also has the power to spend or distribute income or principal of the estate (other than the protected person’s principal residence) without prior court authorization for the support, education, care, or benefits of the protected person and his or her dependents, after considering the recommendations made by a parent or guardian. O.R.S. §§ 125.425(1), 430(1).

      In Oregon, after filing of an acceptance of conservatorship (and bond that may be required), the court must issue Letters of Conservatorship to the conservator. O.R.S. § 125.405. Per O.R.S. § 125.405, the Letters of Conservatorship must be in substantially the following form:

      State of Oregon,	)	​
      ​	)	LETTERS OF
      County of _______________	)	CONSERVATORSHIP

      BY THESE LETTERS OF CONSERVATORSHIP be informed:

      That on _____ (month) _____ (day), 2_____, the _______ Court, _____ County, State of Oregon, appointed _______ (name of conservator) conservator of the estate of _______ (name of protected person) and that the named conservator has qualified and has the authority and duties of conservator of the estate of the named protected person as provided by law.

      LIMITATIONS: ________________________

      IN TESTIMONY WHEREOF, I have subscribed my name and affixed the seal of the court at my office on _____ (month) _____ (day), 2_____. (Seal)

      _____________________, Clerk of the Court

2. B. 

   Application of Authority to Facts

   The Agency can accept Oregon’s Letters of Guardianship as a basis for determining that a beneficiary needs a representative payee. The Letters of Guardianship certifies that the protected person has been appointed a guardian because he or she is a minor in need of a guardian or incapacitated, meaning he or she lacks the capacity to meet the essential requirements for his or her physical health and safety. O.R.S. §§ 125.005(5), 305(1). If an individual meets the definition of a minor in need of a guardian, then the exceptions to the general rule that the Agency assigns representative payees for minor beneficiaries should not apply. 20 C.F.R. §§ 404.2010(b), 416.610(b). Being incapacitated under Oregon law satisfies the Agency’s criteria that a beneficiary is mentally or physically incapable of managing or directing the management of his or her benefit payments, and his or her interests would be served by a representative payee. 20 C.F.R. §§ 404.2010(a), 416.610(a).

   Additionally, Oregon’s Letters of Conservatorship is an acceptable basis for appointing a representative payee to a beneficiary. The Letters of Conservatorship certifies that the court has appointed a conservator because he or she is a minor with possessions that require management or protection or “financially incapable,” meaning unable to manage financial resources effectively due to mental illness, mental retardation, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention, disappearance, or for other reasons. O.R.S. §§ 125.005(3), 400. Being a minor with possessions that require management or protection indicates that the exceptions to the general rule that the Agency assigns representative payees for minor beneficiaries should not apply. 20 C.F.R. §§ 404.2010(b), 416.610(b). Being financially incapable satisfies the Agency’s criteria that a beneficiary is mentally or physically incapable of managing or directing the management of his or her benefit payments, and his or her interests would be served by a representative payee. 20 C.F.R. §§ 404.2010(a), 416.610(a).

CONCLUSION

It is our opinion that the Agency can accept both Oregon’s Letters of Guardianship and Letters of Conservatorship forms as legal evidence of incapability for the purpose of determining the need for a representative payee, despite the fact that the new documents do not specify the protected person is financially incapable or legally incompetent. These forms certify the appointment of a qualified guardian or conservator for a protected person whom the court has found by clear and convincing evidence is either (1) a minor in need of a guardian, (2) incapacitated, or (3) a minor or financially incapable adult with property that requires management or protection. O.R.S. §§ 125.305(1), 125.400. Thus, protected persons subject to these fiduciary appointments should satisfy the Agency’s criteria for the need for a representative payee. 20 C.F.R. §§ 404.2010, 416.610.