TN 3 (10-07)

PR 08605.048 Texas

A. PR 07-225 Texas Guardian Ad Litem As Proper Enumeration Applicant - REPLY

DATE: September 28, 2007

1. SYLLABUS

In the State of Texas, a court-appointed guardian ad litem does not have the same legal authority over a person as a legal guardian it's authority does not include having legal custody of an individual. Therefore, a guardian ad litem may only be considered in the lowest priority in the applicant preference list (POMS RM 00202.005) .

2. OPINION

This memorandum is to provide an opinion on whether the Social Security Administration (Agency) should give a Texas court-appointed guardian ad litem (guardian ad litem) the same level of priority that the Agency gives a court-appointed legal guardian (legal guardian) under the applicant preference list inscribed in Program Operations Manual System (POMS) Records Maintenance (RM) 00202.005(C)(3). If not, you asked whether the Agency should consider the guardian ad litem as either a state licensed agency or an individual in the lowest level of priority under the applicant preference list. In our opinion, a guardian ad litem does not have the same level of priority that a legal guardian has under the applicant preference list because the guardian ad litem does not have either the same or similar legal authority over an individual's person or estate that a legal guardian has under Texas law. Because a guardian ad litem's authority does not include having legal custody of an individual, the Agency should consider the guardian ad litem in the lowest priority in the applicant preference list.

As we understand the facts, in the State of Texas, a court may appoint a guardian ad litem to represent the interest of a child. Texas Family Code Ann. § 107.011. A Texas court may also appoint the Texas Department of Family and Protective Services (Department) as a temporary or permanent managing conservator of a child. Either a court-appointed guardian ad litem or the Department may apply for a Social Security card on behalf of a child. The Agency will consider an applicant with a lower priority when no one with a higher priority exists on the applicant preference list. POMS § RM 00202.005(C)(3).

The Intelligence Reform and Terrorism Prevention Act requires the Agency to "establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement [S]ocial [S]ecurity card." Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B). An individual may complete and sign Form SS-5, "Application for a Social Security Number Card," to apply for a Social Security number or request a replacement Social Security card. See 20 C.F.R. § 422.103(b) and (e).

The POMS provides that a proper applicant for signing Form SS-5 is the person who can apply for and receive a Social Security card on his or her own behalf or on behalf of another person. POMS § RM 00202.005(B). Applicants who are eighteen years of age or older and are physically and mentally capable of reading and completing Form SS-5 must sign the application on their own behalf. Id. § RM 00202.005(C)(1). If physically and mentally capable of reading and completing Form SS-5, a child of any age may sign a Form SS-5 on his or her own behalf. Id. § RM 00202.005(C)(2). In some situations, such as when a child lives at home with both parents, the Agency may consider more than one individual as a proper applicant. Id. § RM 00202.005(B). If an individual is not able to file an application on his or her own behalf, a proper applicant must establish a relationship to, custody of, and/or responsibility for a minor child or an individual age eighteen or over who is physically or mentally incapable of reading and completing Form SS-5. Id. § RM 00202.005(C). The POMS lists proper applicants who may request a Social Security card in the following priority order:

A court-appointed legal guardian (individual or an agency) always has priority over any other proper applicants;

A parent (natural, adoptive, or step) with custody of a child;

Administrator of the individual's (adult or child) estate;

A brother, sister, grandparent, aunt, or uncle with custody of a child;

A state agency or a state licensed agency if it has legal custody of the individual (adult or child); or

An individual who applies on behalf of another individual (adult or child) who can establish relationship and responsibility.

Id. § RM 00202.005(C)(3). The Agency will consider an applicant with a lower priority when no one with a higher priority on the applicant preference list exists. Id.

The Agency must verify that the relationship, custody, or responsibility is established in every case in which an applicant is other than the person to whom the card will be issued. Id. § RM 00202.005(D). A court document that shows the applicant has legal guardianship is sufficient evidence to establish relationship, custody, and/or responsibility. Id. § RM 00202.005(D)(1). Court documents that give a state agency, or a state licensed agency, custody of an individual establish the relationship, custody, and/or responsibility. Id. § RM 00202.005(D)(5).

In Texas, a governmental entity (state agency) with an interest in a child, such as the Department, may file a Suit Affecting The Parent-Child Relationship (SAPCR) requesting to take possession of the child or to terminate the parent-child relationship. Tex. Fam. Code Ann. §§ 262.001, 262.006, 262.008, 262.105. In the SAPCR, the Texas court may appoint the Department as the temporary or permanent managing conservator of the child. Id. §§ 105.001, 262.002, 262.201(c). A court appointed, nonparent managing conservator has the right to have physical possession of the child; to receive and give receipt for payments for the support of the child; to hold or disburse funds for the benefit of the child; to the services and earnings of the child; and to designate the primary residence of the child. Id. § 153.371. In addition, a court appointed, nonparent managing conservator has the duty of care, control, protection, and reasonable discipline of the child. Id. § 153.371.

In the SAPCR, a Texas court may appoint a guardian ad litem to represent the best interests of the child. Id. § 107.001(5). In Texas, a court appoints a guardian ad litem to protect the interest of a minor in a lawsuit in which the minor is a party. American General Fire & Casualty Company v. Vandewater, 907 S.W.2d 491, 493 n. 2 (Tex. 1995) (citing Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex. App.-Dallas 1984, no writ)). In the SAPCR, the guardian ad litem may be a charitable organization or an individual who has received the court's approved training regarding abuse and neglect and who the court has certified to appear at court hearings as a guardian ad litem or as a volunteer advocate for the child. Tex. Fam. Code Ann. §§ 107.001(5), 107.011(b), 107.031. The guardian ad litem is an officer of the court, who is entitled to receive copies of pleadings; to receive notice of each hearing; to attend all legal proceedings in the court-appointed case; and to review and sign, or decline to sign, an agreed order affecting the child. Id. § 107.002(c); Vandewater, 907 S.W.2d at 493 n. 2. The guardian ad litem has the authority to conduct an investigation to determine the best interests of the child and to obtain and review the child's medical, psychological, and school records. Tex. Fam. Code Ann. § 107.002(a).

A guardian ad litem does not have the same legal authority over a person that a legal guardian has under Texas law. A legal guardian is a person whom the Texas court appoints with full authority, with some exceptions not relevant to this analysis, of an individual's person or estate, or both. Tex. Prob. Code Ann. § 693. Whereas, as previously noted, a Texas court appoints a guardian ad litem to represent only the best interests of a person in legal proceedings. Vandewater, 907 S.W.2d at 493 n. 2; see also Tex. Prob. Code Ann. § 601(12) ("'Guardian ad litem' means a person appointed by a court to represent the best interest of an incapacitated person in a guardianship proceeding").

In conclusion, a guardian ad litem does not have the same level of priority that a legal guardian has in the applicant preference list because a guardian ad litem's authority is restricted to represent only the best interests of an individual in legal proceedings and does not include full legal authority of an individual's person or estate. Additionally, a state agency that a Texas court appoints as a temporary or permanent managing conservator, such as the Department, has a higher priority than a guardian ad litem in the applicant preference list because as a managing conservator, the state agency has the power to obtain legal custody of a child, which is a power the guardian ad litem does not have under Texas law. As a result, the Agency should consider the guardian ad litem in the lowest priority in the applicant preference list.

Very truly yours,

Tina M. W~
Regional Chief Counsel

Ruben M~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508605048
PR 08605.048 - Texas - 10/23/2012
Batch run: 10/23/2012
Rev:10/23/2012