1) Does a court order that declares that Mary W~ is a “protected person” under West
Virginia Code § 44A-1-4, and appoints a guardian and conservator without limitation
establish that Mary W~ is legally incompetent for purposes of appointing a representative
2) Can the state of West Virginia compel the Social Security Administration (SSA)
to select the Sheriff of Kanawha County, the court named conservator for Ms. W~, as
representative payee for Ms. W~’s benefits?
1) Yes. Based on the material you provided and the law of West Virginia, Ms. W~ is
legally incompetent, and SSA should appoint a representative payee for her SSI payments.
2) No. A state court order cannot supersede federal law, specifically the Social Security
regulations, regarding the selection of a representative payee. We have requested
that the United States Attorney’s Office file a motion to remove the matter from state
court to federal court, and then file a motion to dismiss.
On January 11, 2011, the Circuit Court of Kanawha County, West Virginia, found that
Mary W~ (SSN ~) is a “protected person,” and appointed a guardian and conservator
without limitation. In reaching this finding, the court adopted the entire “Findings
and Recommendations” of the Mental Hygiene Commissioner. 
The court found that Ms. W~, who is 87, suffers from dementia. The court also noted
that she hoards items in her home, is overdue on all of her utilities, and cannot
account for her income or where she banks. Ms. W~ currently lives at her residence,
and the West Virginia Department of Health and Human Services is seeking appropriate
placement. See Motion to Compel, #7. Jami G~, M.D., a licensed physician, submitted an affidavit stating that Ms.
W~ is unable to handle her affairs due to her dementia. She needs assistance with
managing her finances, taking her medication, and caring for herself. Based on this
evidence, the court concluded that “[t]here is no less restrictive alternative to
the appointment of a guardian and conservator to handle her affairs.”
The court appointed the West Virginia Department of Health and Human Services as Ms.
W~’s guardian, and the Kanawha County Sheriff’s Department as her conservator. Both
appointments were made “without limitation.” See Court Order, At the time of the hearing, there were no other people or agencies available or willing
to be appointed. See Recommendations, The court order does not specify the termination of these appointments, and no evidence
suggests that these appointments have been terminated.
SSA denied the Sheriff Department’s application to be representative payee on February
28, 2011. The Sheriff’s Department filed a request for reconsideration in April 2011.
No final decision has been made based on the evidence provided. On April 13, 2011,
the Sheriff of Kanawha County filed a motion in the Circuit Court of Kanawha County
to compel SSA to appoint the Sheriff’s Department as representative payee.
1. The Court Order is Sufficient Evidence of Legal Incompetency that Would Prohibit
Direct Payment Under the Social Security Regulations.
For purposes of agency records, we recommend that you find Ms. W~ to be legally incompetent
based on the January 11, 2011 court order.
Social Security regulations state that if an individual is legally incompetent, the
individual is prohibited from receiving Social Security benefit payments directly.
See 20 C.F.R. §§ 416.601, 416.610(a)(1) (2010); Programs Operation Manual System (POMS)
GN 00501.005. “Evidence of legal incompetence usually takes the form of a court order appointing
a legal guardian.” POMS GN 00501.005A.2. However, the court order must either 1) specifically address the beneficiary’s competency
(or represent a finding of legal incompetence), or 2) contain a statement regarding
the individual’s ability to handle her financial affairs. Id. The Digest of State Guardianship Laws also provides guidance on when a court order
is sufficient evidence of legal incompetence. See POMS GN 00502.005A.2, GN 00502.300C.  If the court order establishes that an individual is legally incompetent, and the
order is less than one year old, the agency should determine that the beneficiary
is legally incompetent. POMS GN 00502.005B.4. Here, the January 11, 2011 court order is sufficient evidence to establish legal
incompetency for the following reasons.
a. The Court Order Includes a Specific Finding to Indicate Legal Incompetency.
Although the court order does not specifically include the words “legally incompetent”
or “mentally incompetent,” it nevertheless represents a specific finding that Ms.
W~ is legally incompetent.
“Legal incompetency is a decision by a court of law that a claimant is unable to manage
his/her affairs.” POMS GN 00501.010(7). When appointing a guardian and/or conservator, West Virginia law has abandoned
use of the term “mentally incompetent,” and instead utilizes the term “protected person”
in its judicial findings regarding capacity. See W. Va. Code § 44A-1-2 (2011) (stating that individuals found to be “mentally incompetent,”
“intellectually disabled,” or “mentally handicapped” under previous law are now “deemed
to be ‘protected person[s]’”).
West Virginia defines a “protected person” as an adult individual who, because of
a mental impairment, is “unable to receive and evaluate information effectively or
to respond to people, events, and environments to such an extent that the individual
lacks the capacity: (A) To meet the essential requirements for his or her health,
care, safety, habilitation, or therapeutic needs without the assistance or protection
of a guardian; or (B) to manage property or financial affairs or to provide for his
or her support or for the support of legal dependents without the assistance or protection
of a conservator.” W. Va. Code § 44A-1-4(13) (2011).
Here, the court’s finding that Ms. W~ meets the definition of a “protected person”
who required both a guardian and conservator is a finding that she is legally incompetent.
As noted above, a “protected person” is an individual who lacks the capacity to meet
the essential requirements for health, care, safety, habitation, or therapeutic needs,
such that she requires a guardian, or to manage property or financial affairs, such
that she needs a conservator. W. Va. Code § 44A-1-4(13). The court’s finding that
Ms. W~ meets the definition of a “protected person” requiring a guardian and conservator
without limitation, therefore, is a specific finding by the court that she was “unable
to manage her affairs.” This is wholly consistent with the POMS definition of legal
b. The Court’s Appointment of a Conservator Without Limitation Indicates that Ms.
W~ is Unable to Manage Her Financial Affairs.
A court order that includes “statements concerning the beneficiary’s ability to handle
[her] financial affairs [or] responsibilities” also establishes legal incompetency.
POMS GN 00502.005B.1. By finding that Ms. W~ is a “protected person” who required a conservator without
limitation, the court implicitly found that she “lacks the capacity . . . to manage
property or financial affairs or to provide for [her] support.” W. Va. Code § 44A-1-4(13).
In West Virginia, the least restrictive type of guardian or conservator must be appointed.
See W. Va. Code § 44A-2-10 (“A guardianship or conservatorship appointed . . . shall be
the least restrictive possible, and the powers shall not extend beyond what is absolutely
necessary for the protection of the individual.”). For example, a limited guardian
is appointed when the individual retains some mental capacity to handle her personal
affairs. See id. § 44A-2-11 (stating that a limited guardianship is appropriate when the individual
is “capable of addressing some of the essential requirements for [her] health, care,
safety, habitation, or therapeutic needs”). Here, however, the court appointed a guardian
and conservator without limitation, and explicitly noted that “[t]here is no less
restrictive alternative.” This appointment essentially removes all decision-making
authority from Ms. W~. The court’s finding that the least restrictive guardian and
conservator that must be appointed was an appointment without limitation makes clear
that the court believed Ms. W~ is unable to manage her affairs, and therefore, is
2. The West Virginia State Court Cannot Compel the Social Security Administration
to Appoint the Sheriff as Representative Payee Because the Court Does Not Have Subject
Matter Jurisdiction To Enter A Valid, Enforceable Judgment.
Although a West Virginia circuit court appointed the Sheriff’s department to be Ms.
W~’s conservator, SSA retains the exclusive responsibility for appointing Ms. W~’s
The Supremacy Clause of the U.S. Constitution establishes that a federal law – in
this case, the Commissioner’s regulations – supersedes contradictory state law. U.S.
Const. Art. VI, § 2. The Commissioner’s regulations state that SSA has the exclusive
responsibility to select a representative payee for a claimant. Congress enacted the
Social Security Act (Act), which granted 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. 42 U.S.C. § 405(a). "[W]hen a statute
speaks clearly to the issue at hand, [courts] 'must give effect to the unambiguously
expressed intent of Congress.'" Barnhart v. Thomas, 540 U.S. 20, 26 (2003), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The language of the Act clearly establishes that the
Commissioner of SSA may promulgate regulations and establish procedures to carry out
the provisions of the Act.
Pursuant to his statutory authority, the Commissioner’s regulations establish the
procedures for appointing a representative payee. “A representative payee may be either
a person or organization selected by us to receive benefits on behalf of a beneficiary.” 20 C.F.R. § 416.601(a) (emphasis
added). “If the beneficiary is a legally incompetent individual, we may appoint the
legal guardian or some other person as representative payee.” 20 C.F.R. § 416.601(b)(2). Because the regulations clearly
state that it is the exclusive responsibility of the agency to select a representative
payee, and that the agency need not select a legal guardian to serve as payee, the
court cannot compel the agency to appoint Ms. W~’s conservator as her representative
The POMS further confirm that the agency does not have to select a legal guardian
to serve as representative payee. “The [field office] FO is responsible for finding
the person or organization best suited to be payee.” POMS GN 00502.100. While a legal guardian can file to be appointed payee, the agency is not required
to appoint the legal guardian. POMS GN 00502.139. The representative payee should be the “person who will best serve the beneficiary”
Id. The guardian should be appointed only if he/she can better serve the beneficiary’s
interests. POMS GN 00502.139. Based on the materials provided, the Sheriff did not provide any information, beyond
the court order, to prove her ability to serve the beneficiary’s interest. However,
nothing suggests that the Sheriff’s Department could not serve Ms. W~’s interests
as her representative payee. The court decision states that no other parties were
available to serve as guardian, but Ms. W~ told the field office that she has two
nephews, Robert S~ and Charles D~, who regularly contact her. Although the court notified
Ms. W~’s “next of kin,” it is not clear that either of these individuals were contacted.
SSA can appoint the Sheriff’s department as representative payee if it will best serve
Ms. W~’s interests.
Accordingly, while the state has the authority to designate who may serve as an individual’s
guardian and/or conservator, the state does not have the authority to select a representative
payee for a claimant’s benefits. Thus, a contradictory state court order appointing
the Sheriff as representative payee would not have any legal effect. The United States’
Attorneys Office will file a motion to remove the motion to compel appointment as
representative payee from state court to federal court, and will then file a motion
to dismiss the motion to compel.
Based on the January 11, 2011 court order appointing a guardian and conservator without
limitation, we recommend that you consider Ms. W~ to be legally incompetent for purposes
of appointing a representative payee. However, the court cannot compel the agency
to appoint the Sheriff’s Department as Ms. W~’s representative payee.
Eric P. K~,
Regional Chief Counsel
Assistant Regional Counsel