TN 4 (07-14)

PR 07230.014 Hawaii

A. PR 14-121 Acceptability of Payee's Collective Account

1. SYLLABUS

A bank account titled “Estate Administrative Services (EAS) LLC, Client Trust Account” does not meet SSA’s regulatory and statutory requirements for a representative payee collective account. Specifically, it does not protect the beneficiaries, under Hawaii state law, from seizure if the payee is sued or declares bankruptcy and does not necessarily ensure individualized Federal Deposit Insurance Corporation (FDIC) deposit insurance coverage of Social Security and Supplemental Security Income (SSI) beneficiary funds.

2. OPINION

QUESTION PRESENTED

You asked whether titling a representative payee’s collective fiduciary account “Estate Administrative Services (EAS) LLC, Client Trust Account” provides the specificity that agency policy requires to assure individualized Federal Deposit Insurance Corporation (FDIC) deposit insurance coverage of Social Security and Supplemental Security Income (SSI) beneficiary funds and to protect those funds from seizure if the payee is sued or declares bankruptcy?

SHORT ANSWER

No. The payee’s current account title will not guarantee protection against seizure if the payee is sued or declares bankruptcy, nor does it provide sufficient likelihood of individualized FDIC coverage. The payee should adopt one of the account title formats that agency policy recommends: either (Name of Payee) for SSA/SSI Beneficiaries; or (Name of Payee), representative payee for Social Security Beneficiaries. In addition, since the payee’s account may include funds of Social Security and SSI beneficiaries together with funds of non-beneficiary clients, the agency should ensure that the payee can adequately account for all beneficiary funds.

BACKGROUND

Agency policy advises a representative payee to deposit funds not needed for the beneficiary’s current maintenance in an interest-bearing or dividend-bearing account in a financial institution that is insured under either Federal or State law. Program Operations Manual System (POMS) GN 00603.010.A. The payee must deposit the funds in an account that is titled to show the payee has only a fiduciary interest in the funds. Id.

If they obtain field office (FO) approval, payees who serve multiple beneficiaries may hold benefit payments in one collective account. POMS GN 00603.020.A. The collective account title must show that the payee holds the account in a fiduciary capacity on behalf of the beneficiaries. POMS GN 00603.020.B. The title must make clear that the payee is the manager of the account while the beneficiaries are the owners of the account funds. Id.

The local FO is responsible for ensuring that the payee sets up the collective account in accordance with SSA’s policies and procedures. POMS GN 00603.020.B.2. In performing this duty, a FO in Hawaii has expressed concern about the collective account maintained by payee Estate Administrative Services, LLC (EAS).

The EAS website indicates that it provides a variety of financial services intended “to make the administrative duties of personal representatives and trustees easier.” See http://www.estateadminservices.com/main.html (last visited June 16, 2014). While the offered services are largely accounting and financial, the individualized services may include household management services and bill paying; presumably, the representative payee role arises in this context. See http://www.estateadminservices.com/services.html (last visited June 16, 2014).1

EAS maintains a collective account entitled “Estate Administrative Services (EAS) LLC, Client Trust Account” at First Hawaiian Bank (FHB). FHB Vice President and Service Manager (VP) S~ expressed concern to the FO that EAS’s account was not a fiduciary account and therefore had no safeguards against seizure if EAS was sued or declared bankruptcy.

According to information you provided, FHB told the FO the following:

It is NOT a fiduciary account. [The bank] is aware that EAS uses it as a fiduciary account, but for FHB’s purposes it is not. FHB would require specific documentation to classify or title it as a fiduciary account. As an example she stated that if the documentation indicated, “Acting as Successor Trustee” then they would consider it a fiduciary account. In EAS’s situation, the fiduciary capacity is unclear.

The account is NOT protected against seizure if the payee is sued or goes bankrupt because it is not clearly titled for a specific client – instead it uses the general title of “Client Trust Acct”.

This information from the bank lead to your concerns about how the account is currently titled and protection of the beneficiaries’ funds.

ANALYSIS

EAS maintains a collective account that it uses, at least in part, for funds received on behalf of the Social Security beneficiaries it represents. A vice president for the bank in which these funds are deposited advised the FO that this account is not a fiduciary account both because the fiduciary status is unclear, and because EAS has not provided the specific documentation necessary to classify it as a fiduciary account. VP S~ reportedly further explained that this meant the account is not protected against seizure if the payee is sued because it was not clearly titled for a specific client. From this limited information, it is unclear whether the bank VP meant that the account should identify a specific individual client or a specific type of client. Irrespective, for the reasons explained below, in order to protect its beneficiaries’ funds from seizure and to ensure FDIC coverage, EAS should change its account title to conform more directly to agency policy.

A. Legal Requirements under Federal and State Law

1. Agency policy requires that beneficiary funds be held in fiduciary accounts

The Social Security Act (Act), regulations, and agency policy require payees to use the benefits they receive for the current needs of the beneficiary and in the beneficiary’s best interests. Act §§ 205(j)(3), 42 U.S.C. §§ 405(j)(3), 1383(a)(2)(C); 20 C.F.R. §§ 404.2035 – 404.2045, 416.635 – 416.645; POMS GN 00602.001.A.1, GN 00605.001.B.1. After the payee uses benefit funds to satisfy the beneficiary’s immediate and reasonably foreseeable needs, the payee must conserve or invest any remaining funds for the beneficiary. 20 C.F.R. §§ 404.2045(a), 416.645(a); GN 00602.001.A, GN 00603.001.A. The agency’s preferred investments for conserved funds include deposits in an FDIC or State insured interest or dividend paying account. 20 C.F.R. §§ 404.2045(b), 404.645(b); see POMS GN 00603.010.A.

Payees must deposit the funds into an account that is titled to show the payee has only a fiduciary interest in the funds. 20 C.F.R. §§ 404.2045(b), 416.645(b); POMS GN 00603.010.A. The agency’s preferred account title for an individual beneficiary account is: (Name of Beneficiary) by (Name of Payee), representative payee. 20 C.F.R. §§ 404.2045(b)(2), 416.645(b)(2); POMS GN 00603.010.B. However, other account titles are acceptable if they clearly show that the payee (1) has only a fiduciary and not a personal interest in the funds, and (2) holds the funds in trust for the beneficiary. POMS GN 00603.010.B.1.

In addition to individual beneficiary accounts, under certain conditions, the FO may approve collective checking and savings accounts that a payee establishes to hold funds belonging to multiple beneficiaries. POMS GN 00603.020.B. As with individual beneficiary trust accounts, the collective trust account title must show that the payee holds the account in a fiduciary capacity on behalf of multiple beneficiaries. Id. The proper account title shows the payee as the manager of the account and the beneficiaries as the owners: for example, either (Name of Payee) for SSA/SSI Beneficiaries; or (Name of Payee), representative payee for Social Security Beneficiaries. Id. (agency policy provides an exception for State/local government organizational payees).

While the agency prefers that the collective account contains only funds stemming from Social Security or Supplemental Security Income (SSI) benefits, the agency will permit different types of funds to be mixed in a collective account so long as it meets certain conditions:

Preferably, the account should contain only Social Security or SSI funds received by the payee on behalf of the beneficiaries. However, agencies often establish patient/client trust accounts for the use of all patients/clients (beneficiaries and non-beneficiaries alike). The FO may approve an account containing both beneficiary and non-beneficiary money if it is a fiduciary account and the payee can adequately account for all beneficiaries for whom it receives benefits.

POMS GN 00603.020.B (NOTE).

2. Federal Deposit Insurance will cover beneficiary funds held in fiduciary accounts so long as the fiduciary relationship is clear from certain bank account records

The Federal Deposit Insurance Act (FDIA), 12 U.S.C. §§ 1811, et seq., and its enacting regulations allow a payee to obtain separate FDIC deposit insurance coverage for each beneficiary’s interests in funds held in a collective fiduciary account if the payee satisfies several requirements. See 12 C.F.R. § 330.7(c) (the FDIC treats accounts held by fiduciaries on behalf of two or more persons as a joint ownership account); see also 12 C.F.R. § 330.9 (each co-owner’s interest in a qualifying joint ownership account is separately insured). The FDIC recognizes a claim for insurance coverage based on a fiduciary relationship only if the account titling and the deposit account records expressly disclose or otherwise clearly indicate the existence of a fiduciary relationship. 12 C.F.R. § 330.5(b)(1).

FDIC insurance covers the owners of the funds, and not necessarily the depositor. 12 C.F.R. § 330.3(a) & (h). While legal ownership of deposited funds is a necessary condition for FDIC insurance, it is neither sufficient for, nor decisive in, determining coverage. Id. Rather, the FDIC generally relies on information contained in the bank’s records.

The FDIC presumes that the insured bank’s “deposit account records” indicate the correct ownership of the deposited funds. 12 C.F.R. § 330.5(a)(1). “Deposit account records” means the insured bank’s “account ledgers, signature cards, certificates of deposit, passbooks, corporate resolutions authorizing accounts in the possession of the insured [bank] and other books and records of the insured [bank], including records maintained by computer, which relate to the insured [bank’s] deposit taking function.” 12 C.F.R. § 330.1(e). If the FDIC determines that the deposit account records clearly and unambiguously describe the ownership of the deposited funds, the records are binding on the depositor. 12 C.F.R. § 330.5(a)(1). If the records are unclear or ambiguous in describing the ownership of the deposited funds, the FDIC may consider evidence other than the deposit account records to determine ownership, but is not required to do so. Id.

In sum, the FDIC and agency policy allow a payee to use a collective fiduciary account to conserve beneficiary funds, and offers individualized insurance of those funds if the payee establishes and maintains the account properly.

3. Hawaii law permits collective fiduciary accounts

Hawaii state law provides that “Hawaii financial institutions may open accounts and accept deposits therein of any type generally accepted by financial institutions in the United States.” Haw. Rev. Stat. § 412:4-101(a). Hawaii financial institutions “may open accounts and accept deposits … in the name of one or more persons, in the person’s own right or in a fiduciary or other representative capacity, in any form of ownership not inconsistent with the laws of th[e] State.” Id. § 412:4-101(b). Hawaii law will not allow any bank to accept deposits unless those deposits are insured by the FDIC. Haw. Rev. Stat. § 412:4-104. Thus, we can rely on FHB’s operation under state law to conclude that it is an FDIC insured bank. The FHB website also discusses and explains FDIC Deposit Insurance and how it applies to various types of bank accounts. See https://www.fhb.com/en/fdic-insurance/ (last visited June 16, 2014).

As with the FDIA, Hawaii law allows accounts to be held in more than one name. Haw. Rev. Stat. § 412:4-105. Hawaii law also allows banks to “open accounts and accept deposits therein in the name of a person as a trustee, personal representative, guardian, conservator, agent, custodian or other fiduciary for one or more other persons.” Haw. Rev. Stat. § 412:4-106.

Thus, to the extent that the bank suggested that deposit insurance coverage did not extend to collective fiduciary accounts, the suggestion is erroneous. A payee may use a collective fiduciary account to hold beneficiary funds under Hawaii law, and may assure individual FDIC coverage of each beneficiary’s funds by using the proper account title and clearly describing the payee’s fiduciary nature and the ownership of the funds in the deposit account records.

B. EAS’s account title does not clearly describe the account’s fiduciary nature or the fund owners’ identity and thereby puts the funds at risk

EAS’s collective fiduciary account bears the title, “Estate Administrative Services (EAS) LLC, Client Trust Account.” The title is similar to that used by attorneys to hold client funds. However, the bank’s concern indicates that, unlike attorney-client trust accounts, the relationship between Estate Administrative Services and its clients is not clear to others. Thus, the beneficiary funds held in the account may be at risk.

An attorney’s “client trust account” is a place where an attorney in possession of client funds incident to the practice of law can maintain those funds separate from the attorney’s own funds. See e.g. HI. R. Trust Accts. Rule 4; Haw. R. Sup. Ct. 11(B) (“With respect to all trust accounts, the attorney or law firm shall comply with the Hawai’i Rules of Professional Conduct and the Hawai’i Rules Governing Trust Accounting relating to preserving the identity of funds and property of a client”). Thus, both the relationship between the attorney and client and the reason for the attorney holding the client’s funds are clear.

In contrast, the relationship between an entity named “Estate Administrative Services” and its clients is not clear. In part, this is because the term “estate” has multiple meanings, none of which clearly show a client or fiduciary relationship,2 and the term “administrative service” is equally imprecise. EAS’s account title thus offers no clarity on identity or status of the “clients” – including whether they are alive or deceased, individuals or entities – or on either the nature of the deposits held in the account or the type of service EAS provides. Similarly, the services that EAS advertises on its website indicates that the bulk of its business comes from financial advising and trust management related to estates of deceased persons, not payee services for disabled beneficiaries. See http://www.estateadminservices.com/services.html. In light of the ambiguity inherent in EAS’s choice of account title, the bank’s concern that the account does not necessarily protect against seizure if the payee is sued or declares bankruptcy has some merit, particularly in light of potentially related Hawaiian law.

Under Hawaii probate law, a “trust account” is “an account in the name of one or more parties as trustee for one or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; [though] it is not essential that payment to the beneficiary be mentioned in the deposit agreement.”3 Haw. Rev. Stat. § 560:6-101. The account could be viewed as a revocable type of trust account with ownership held by EAS. Trusts used as testamentary substitutes (Totten trusts) are tentative trusts only; the funds in the trust still belong to the “trustee” until that person dies, and the trust may be revoked at any time. See POMS SI 01120.200.B.7 (describing Totten trusts and recognizing their revocability); see gen. In re Totten, 179 N.Y. 112, 125-26, 71 N.E. 748, 752 (1904) (“A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary.”)

Hawaii law confirms the tentative nature of such a trust:

Unless the financial institution has received written notice or has actual knowledge that the beneficiary has a vested interest not dependent upon the beneficiary’s surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that the deceased trustee was the survivor of all other persons named on the account either as trustee or beneficiary. A trust account may be paid, on request and according to its terms, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.

Haw. Rev. Stat. § 560:6-111.

EAS’s account title is ambiguous because it does not clearly indicate the existence of a fiduciary relationship to multiple beneficiaries. Rather, it states only the name of a company and the phrase “client trust account.” The nature of the company is not obvious, and its relationship to its clients is thus unclear. From our review of Hawaii law, Hawaii does not require this type of business to have a client trust account, but only mandates these accounts for lawyers, collection agencies, real estate brokers, and travel agents. See Haw. Rev. Stat. §§ 443B-8 (collection agency client trust accounts); 467-1.6 (real estate broker client trust accounts); 468L-23 (charter tour client trust accounts); Haw. R. Sup. Ct. 11 (interest-bearing lawyer trust accounts). Therefore, for purposes of serving as a payee for SSA/SSI beneficiaries, the account title is inherently ambiguous. Further, the ownership of the funds is unclear from the account title; it could be either the payee (as it would be in a Totten trust), or the “clients” or, if the clients are deceased, some other person or entity.

Because the account title does not clearly and unambiguously identify the owner or owners of the deposited funds, it does not protect those funds from the payee’s creditors. Further, the FDIC only covers individual beneficiaries’ funds if it can determine that the deposit account records clearly and unambiguously describe the ownership of the deposited funds. 12 C.F.R. § 330.5(a)(1). A reviewing entity like the FDIC could not determine the ownership of the deposited funds solely from the account title EAS currently utilizes, and it is not required to review ownership documents beyond the deposit account records. As a result, the account, as titled, does not ensure FDIC coverage over the funds of each beneficiary, nor even protection against the payee’s creditors. The bank’s concerns are well-founded.

CONCLUSION

Both collective and individual fiduciary accounts are protected against seizure and covered by federal deposit insurance so long as all necessary regulatory requirement