PR 07110.028 Missouri

A. PR 04-092 (Missouri) Pettis County Public Administrator as Representative Payee

DATE: February 3, 2004

1. SYLLABUS

The opinion settles an inquiry regarding whether SSA has the authority to appoint a Public Administrator's office to serve as representative payee, rather than the individual designated by the state as a beneficiary's guardian and/or conservator. A former Pettis County Public Administrator (PA), Kansas City, Missouri, is still designated by the state court as guardian and/or conservator for a number of social security beneficiaries, despite having left the office of the PA. A new PA has been appointed by the governor of the State. The PA's office was approved by the Social Security Administration to serve as representative payee for beneficiaries receiving Social Security benefits, not the individual who holds the office. The decision concluded by stating that while the state has the authority to designate who serves as an individual's guardian/conservator, the state has no authority to neither select a representative payee for Social Security benefits nor direct the payment of those federal funds.

2. OPINION

You have asked whether the Social Security Administration (SSA) may appoint the Pettis County Public Administrator's office to serve as representative payee, rather than the individual designated by the state as a beneficiary's guardian and/or conservator. The answer is yes.

You stated that Marilyn S~, the former Pettis County Public Administrator (PA), is still designated by the state court as guardian and/or conservator for a number of social security beneficiaries, despite having left the PA's office. Charles Ackerman has now been appointed by the governor as the new PA. The state court has also designated Mr. Ackerman as guardian and/or conservator for some, but not all, of the social security beneficiaries which were previously being serviced by Ms. S~.

Initially, SSA is exclusively responsible for selecting a "representative payee" with respect to Social Security benefits. Congress enacted the Social Security Act (Act), granting the Commissioner of SSA the "full power and authority to make rules and regulations and establish procedures" consistent with the Act to carry out the provisions thereof. See 42 U.S.C. 405 (a). As the United States Supreme Court recently stated, "when a statute speaks clearly to the issue at hand we 'must give effect to the unambiguously expressed intent of Congress.'" See Barnhart v. Thomas, 124 S.Ct. 376, 380 (2003), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S.Ct. 2778 (1984). In this case, Congressional intent was clear, the Commissioner of SSA may promulgate regulations and establish procedures to carry out the provisions of the Act.

The Commissioner's regulations provide that a representative payee will be selected to receive benefit payments in certain situations. See 20 C.F.R. §§ 404.2010 and 416.610 (2003). The term "representative payee," refers to the receipt of a beneficiary's Social Security benefits by a third party consistent with an agreement that the funds will be used for the beneficiary's current maintenance and reasonably foreseeable needs. See 20 C.F.R. §§ 404.2035, 404.2040, 416.635, and 416.640 (2003). The remaining funds, if any, are to be conserved or invested. See 20 C.F.R. §§ 404.2045(a) and 416.416.645(a) (2003). The regulations further provide that, generally, a representative payee will be chosen to receive benefit payments on behalf of a beneficiary, pursuant to an established order of preference. See 20 C.F.R. §§ 404.2010, 404.2020, 404.2021. 416.610, 416.620, and 416.621 (2003). However, when selecting a representative payee, the Commissioner also considers several factors including the relationship of the person to the beneficiary, the amount of interest the person shows in the beneficiary, any legal authority the person has to act on behalf of the beneficiary, whether the potential payee has custody of the beneficiary, and whether the potential payee is in a position to know of and look after the needs of the beneficiary. See 20 C.F.R. §§ 404.2020 and 416.620 (2003). In this situation, SSA has previously expressed concerns about some expenditures made by Ms. S~, in her capacity as representative payee. Moreover, because Ms. S~ is no longer PA and is now employed in the Kansas City area, she is less likely to "be in a position to know of and look after" the needs of the numerous beneficiaries. Thus, SSA may reasonably conclude that a change in payee is in the best interest of the beneficiaries. The regulations provide that SSA will attempt to locate a new representative payee when it learns that the interests of the beneficiary are not served by continuing payment to the current payee. See 20 C.F.R. §§ 404.2050 and 416.650 (2003).

It is also important to note that the state court's designation of an individual as a beneficiary's guardian and/or conservator does not change the rights and responsibilities of a representative payee, with respect to Social Security benefit payments. See 20 C.F.R. §§ 404.2035, 404.2040, 416.635, and 416.640 (2003). The regulations require that the payee use his or her discretion in using the benefit payments for the use and benefit of the beneficiary, as in the beneficiary's best interest. See 20 C.F.R. §§ 404.2035 and 416.635 (2003). SSA's Programs Operation Manual System (POMS) GN 00602.001 provides that a representative payee has the "full right and duty to spend [the benefits] in the best interest of the beneficiary, according to his/her best judgment." The regulations further provide that the representative payee is presumed to use the benefits properly, if the payments are used for the beneficiaries'current maintenance. See 20 C.F.R. §§ 404.2040 and 416.640 (2003).

Thus, the Commissioner has clearly established rules, regulations, and procedures, consistent with the Act, which provide that it is the representative payee who determines the proper use of Social Security benefits. Ms. S~, in her role as guardian and/or conservator, has no authority to expend Social Security benefits. In situations such as this, the representative payee will also be responsible for using his discretion with respect to the payment of guardian fees. These court-ordered fees should be reviewed pursuant to POMS GN 00602.040. Nevertheless, SSA's policy is that customary guardian fees and court-ordered fees are allowable expenses. See POMS GN 00602.040.

While the state has the authority to designate who may serve as an individual's guardian and/or conservator, for the reasons set forth above, the state has no authority to select a representative payee for Social Security benefits nor does the state have any authority to direct the payment of those federal benefits. See 42 U.S.C. § 405; Mo. Ann. Stat. § 475.079 (2003). While Ms. S~ may, under Missouri law, continue to serve as conservator and/or guardian for some individuals who receive federal benefits, for a period of one year or, if before one year, until such time as she submits her annual settlement, these designations have only state law implications and do not impact a new representative payee's rights and/or responsibilities. See 20 C.F.R. §§ 404.2035, 404.2040, 416.635, and 416.640 (2003); see also Mo. Stat. Ann. § 473.767 (2003). Should the PA's office be selected as the most appropriate representative payee, the individual properly in the PA position will receive and disburse all Social Security benefits for the appropriate beneficiaries. Because the federal supremacy clause prohibits a state court from imposing its will over federal law based upon the clear intent of Congress, in this case the disposition of Social Security funds, any portion of a Pettis County Probate Court order granting Ms. S~ the authority to receive or disburse Social Security benefit funds is without effect. See U.S. Const., Art. 6, cl. 2.

We hope that this memorandum answers your questions.

Frank V. S~
Chief Counsel, Region VII

By___________
Pamela J. M~~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1507110028
PR 07110.028 - Missouri - 05/02/2004
Batch run: 04/25/2016
Rev:05/02/2004