QUESTION
You asked for a comprehensive list of state laws in the Atlanta Region on the ability
of individuals to access funds in conservatorship/blocked accounts for the purpose
of support and maintenance for Supplemental Security Income (SSI) claimants and recipients.
DISCUSSION
Introduction
A “conservatorship account” (sometimes referred to as a “blocked account”) is a financial
account in which a person or institution has been appointed by a court to manage and
preserve the assets of an individual (i.e., a claimant, recipient, or other person
whose resources are deemable to the claimant or recipient) that are held in the account.
See Program Operations Manual System (POMS) SI 01140.215A.1, A.2. The Social Security Administration (SSA) assumes, absent evidence to the contrary,
that funds in a conservatorship account are available for the individual’s support
and maintenance (and are, therefore, that individual’s resource) if state law requires
that funds in a conservatorship account be made available for the care and maintenance
of an individual. See POMS SI 01140.215B.1. However, state law may not specifically address the issue, or state law may specifically
prohibit the use of funds held in a conservatorship account for the individual’s general
support in certain circumstances. See id.
Thus, SSA needs regional instructions regarding any presumptions about conservatorship
accounts for each state. We note that in the states in the Atlanta Region, not all
states have laws that specifically discuss conservatorship accounts. However, each
state does allow for the appointment of persons similar to conservators and the creation
of financial accounts similar to conservatorship accounts.
Alabama
Under Alabama law, a court may appoint a conservator for the estate and affairs of
a minor or a person unable to manage property and business affairs effectively if
the court determines that the minor or person has funds or property that requires
management or protection and the funds are needed for health, support, education,
or maintenance and that protection is necessary or desirable to obtain or provide
funds. See Ala. Code § 26-2A-130 (2017). The appointment of a conservator vests in the conservator
title as trustee of the property of the protected person, and the protected person
generally cannot transfer or assign his or her interest in the property vested in
a conservator. See Ala. Code § 26-2A-148 (2017). A conservator is given numerous powers over the property
of a protected person, including the power to distribute the property of the protected
person. See Ala. Code §§ 26-2A-152, 26-2A-153 (2017). In particular, “[a] conservator may expend
or distribute income or principal of the estate without court authorization or confirmation
for the health, support, education, or maintenance of the protected person and dependents.”
Ala. Code § 26-2A-153(a). In addition, a conservator must expend or distribute sums
reasonably necessary depending on the specific circumstances of the protected person,
including the protected person’s accustomed standard of living. See Ala. Code § 26-2A-153(a)(2).
Thus, under Alabama law SSA may assume that funds in the conservatorship can be made
available for the support and maintenance of the SSI claimant or recipient.
Florida
Although Florida has a chapter under its domestic relations law titled “Conservatorship,”
the chapter is limited to conservatorships for persons who are absentees. See Fla. Stat. Ann. §§ 747.01 - .052 (West 2017). “Absentee” includes persons serving
in the Armed Forces of the United States or similar entities during a time of hostilities
who are reported as missing in action or who disappears under circumstances indicating
her or she may have died. See Fla. Stat. Ann. § 747.01. Because “absentee” does not include persons who might be
eligible for SSI, Florida’s formal conservatorship law is not applicable here. However,
Florida guardianship law appears to address the circumstances under which a party
may have control of the funds or assets of a person who is not an “absentee.” See Fla. Stat. Ann. §§ 744.101 - .653 (West 2017).
Under Florida guardianship law, a guardian of an incapacitated person is a fiduciary
and may exercise only those rights that have been removed from the ward and delegated
to the guardian; the guardian shall act within the scope of the authority granted
by the court and as provided by law. Fla. Stat. Ann. § 744.361(1), (2). A guardian,
if authorized by the court, shall take possession of all of the ward’s property and
rents, income, issues, profits from it and the proceeds of any sale, lease, or mortgage
of the property. See Fla. Stat. Ann. § 744.361(12) (West 2017). The guardian may use the ward’s assets
and income from the property for care, support, maintenance, and education of the
ward or the ward’s dependents, as provided under terms of guardianship plan or by
law or as authorized by the court. See Fla. Stat. Ann. §§ 744.361(12), 744.397(1); see also Fla. Stat Ann. § 744.444 (without obtaining court approval, a plenary guardian of
the property or a limited guardian of the property within the powers granted by the
order appointing the guardian or an approved annual/amended guardianship report may
pay reasonable living expenses for the ward (but no authorization to pay funds for
living expenses of minor ward if one or both parents are alive)).
Thus, before assuming the funds are available for support and maintenance of the SSI
claimant or recipient, SSA should review the court order/initial plan to determine
the scope of authority granted by the court.
Georgia
Under Georgia law, a conservator shall receive, collect, and make decisions about
the property of a minor or ward except as otherwise provided by law or by the court
and must “[p]rovide for the support, care, education, health, and welfare of the [minor
or ward].” Ga. Code Ann. §§ 29-3-21(a), (b)(5), 29-5-22(a), (b)(5) (West 2017). In
addition, a minor or ward for whom a conservatorship is created has the right to have
his or her property “utilized as necessary to provide adequately for the [minor’s
or ward’s] support, care, education, health, and welfare.” Ga. Code Ann. §§ 29-3-20(a)(3),
29-5-20(a)(3) (West 2017). A conservator may use any income from the property/funds
within the conservatorship for the support, care, education, health, and welfare of
the minor or ward. See Ga. Code Ann. §§ 29-3-22(a)(1), 29-3-30(c), 29-5-23(a)(1), 29-5-30(c) (West 2017).
However, the conservator must have approval from the court of a budget for expending
funds/resources in excess of the income from the property. See Ga. Code Ann. §§ 29-3-22(a)(1), 29-5-23(a)(1).
Thus, under Georgia law, SSA may assume that the funds in the conservatorship can
be made available for the support and maintenance of the SSI claimant or recipient.
However, SSA should obtain the court order granting the conservatorship to check for
any restrictions on the disbursement of the assets of the minor or ward.
Kentucky
Under Kentucky law, any interested person or entity may petition the district court
for appointment of a conservator for a minor who owns property requiring management
or protection. See Ky. Rev. Stat. Ann. § 387.025(2) (West 2017). Similarly, any interested person or
an individual needing conservatorship may petition the district court for the appointment
of a limited conservator or conservator. See Ky. Rev. Stat. Ann. § 387.530(1) (West 2017). A guardian must expend or distribute
income or principal of the ward’s estate for the support, care, and education of the
ward, but the district court may limit or restrict the guardian’s exercise of this
power. See Ky. Rev. Stat. Ann. § 387.065(4) (West 2017). In addition, a guardian cannot provide
for the support, care, or education of a ward if a parent is legally obligated and
financially able to provide support, care, and education. See Ky. Rev. Stat. Ann. § 387.065(6). A conservator must generally use the income and
principal of the account for the support, care, and education of the minor. A conservator
generally does not require court authorization to use funds for these purposes, but
a court may require the court’s order before the conservator withdraws funds and a
court may restrict access to the account’s funds. Ky. Rev. Stat. Ann. §§ 387.065(4)-(6),
387.122, 387.125(1), 387.137.
Thus, in Kentucky, SSA may assume that the funds in a conservatorship account can
be made available for the support and maintenance of the SSI claimant or recipient.
However, SSA should obtain the court order granting the conservatorship to check for
any restrictions on the disbursement of the assets of the minor or ward.
Mississippi
Under Mississippi law, a court “may appoint a conservator to have charge and management
of the property of” a person who “is incapable of managing his own estate by reason
of advanced age, physical incapacity or mental weakness.” Miss. Code Ann. § 93-13-251
(West 2017). A “conservator shall have the same duties, powers and responsibilities
as a guardian of a minor, and all laws relative to the guardianship of a minor shall
be applicable to a conservator.” Miss. Code Ann. § 93-13-259 (West 2017); see also Miss. Code Ann. § 93-13-261 (West 2017) (stating “the person whose property or person
is in the charge of such conservator shall be limited in his or her contractual powers
and contractual obligations and conveyance powers to the same extent as a minor”).
Applying Mississippi guardianship law, a court may determine the amount of funds that
a conservator may expend for the support and maintenance of the person for whom the
conservatorship is established. See Miss. Code Ann. § 93-13-35 (West 2017). The court also may authorize the sale of
the person’s property if the income from the person’s estate does not cover necessary
expenses, and a conservator cannot make any expenditure in excess of the person’s
income without a previous court order authorizing such expenditures. See id.; see also Miss. Code Ann. § 93-13-263 (West 2017) (stating “[i]f there be any persons dependent
upon the person for whom the conservator has been appointed, the court shall provide
for their support and maintenance from the assets of said estate and the conservator
shall be directed to make the necessary support and maintenance available from the
assets of said estate”). A conservator has the duty “to apply so much of the income,
profit or body thereof as may be necessary for the comfortable maintenance and support
of the [person for whom the conservatorship is established] after obtaining an order
of the court fixing the amount.” Miss. Code Ann. § 93-13-38(2) (West 2017). A conservator
empowered to purchase a home for the person for whom the conservatorship is established
and pay the person’s debts. See id. However, if the person for whom the conservatorship is established is a minor and
had a parent, the court must determine whether the expense of maintaining and educating
the minor must be borne by the guardian. See Miss. Code Ann. § 93-13-37 (West 2017).
Thus, in Mississippi, SSA cannot assume the funds in a conservatorship account are
available for the support and maintenance of the SSI claimant or recipient. SSA must
review the court order establishing the conservatorship and any subsequent court orders
concerning the authority of the conservator to use the funds of the SSI claimant or
recipient.
North Carolina
Under North Carolina law, the statute lays out the specific powers of a general guardian
or guardian of the estate (a legal designation that the agency considers equivalent
to a conservator), which includes an appointee, who takes possession of the individual’s
estate for the individual’s use to expend estate income for the support, maintenance,
and education of the individual’s minor children, spouse, and dependents and who can
petition the court for prior approval of expenditures from the estate principle for
these purposes. N.C.G.S.A. § 35A-1251(1), (21).
Thus, it may be presumed that funds under conservatorship are to be made available
for the maintenance and support of the protected individual.
South Carolina
Currently in South Carolina, a guardian/conservator may expend or distribute sums
from the principal of an estate without court authorization or confirmation for the
support, education, care, or benefit of the protected person and his dependents in
accordance with certain principals. See Code of Laws of S.C. § 62-5-425. Thus, the funds under conservatorship are countable
as a resource for the protected individual.
Beginning January 1, 2019, a guardian serving as a fiduciary, is obligated to apply
the money for the benefit of the minor/incapacitated person, but the court must explicitly
set forth the rights and powers vested in the conservator (if the powers are not entrusted
to the conservator, they are retained by the protected individual). See S.C. Statute § 62-5-103(B) (2017 amendment); § 62-5-304(A) (for minors); § 62-5-407(A),
(B) (for incapacitated adults)); § 62-5-304(B) (2017 amendment). Subject to rights
and powers retained by the ward and except as modified by order of the court, the
guardian has the following duties, rights and power: if entitled to custody of his
ward, providing for the care, comfort, and maintenance of the ward. See § 62-5-309(A) (2017 amendment); § 62-5-423 (A)(2) (a conservator may expend or distribute
sums from the estate without further court authorization for the health, education,
maintenance, and support of the protected person and his dependents in accordance
with certain principles as outlined in the statute).
Thus, in South Carolina, SSA may currently assume that the funds in a conservatorship
account can be made available for the support and maintenance of the SSI claimant
or recipient. However, beginning in January 2019, SSA should obtain the court order
granting the conservatorship to check for any restrictions on the disbursement of
the assets the claimant.
Tennessee
Under Tennessee law, conservatorship “is a proceeding in which a court removes the
decision-making powers and duties, in whole or in part, in a least restrictive manner,
from a person with a disability who lacks capacity to make decisions in one or more
important areas and places responsibility for one or more of those decisions in a
conservator or co-conservators.” Tenn. Code Ann. § 34-1-101(4)(B) (West 2017). A conservator
is a person or entity “appointed by the court to exercise the decision-making rights
and duties of the person with a disability in one or more areas in which the person
lacks capacity as determined and required by the orders of the court.” Tenn. Code
Ann. § 34-1-101(4)(A); see also Tenn. Code Ann. § 34-1-101(7) (stating that a conservator is a fiduciary). The ability
of the conservator to use the funds placed under conservatorship will depend on the
specific rights and duties laid out in the letters of conservatorship or court order
establishing the conservatorship. See Tenn. Code Ann. §§ 34-1-104(a), 34-1-113(a)-(c), 34-1-122, 34-3-107(a)(2) (West 2017);
see also In re Conservatorship of Melton, No. E2014-01384-COA-R3-CV, 2015 WL 4594126, at *4 (Tenn. Ct. App. July 31, 2015)
(stating the authority, rights and responsibilities of a conservator are not independent
of the court, as a conservator acts as the court’s agent). The Court can grant the
conservator the power to pay bills and expenses of the person with a disability, but
the specific powers of the conservator will be based on the letters of conservatorship
or court order. Tenn. Code Ann. § 34-1-113(a), (b), 34-1-129, 34-3-107(a)(2) (West
2017); see also Tenn. Code Ann. § 34-1-109(b) (West 2017) (stating that “the fiduciary’s faithful
performance oath shall include a promise to timely file each required inventory and
accounting and to spend the assets of the minor or person with a disability only as
approved by the court”); Tenn. Code Ann. § 34-3-108 (West 2017) (allowing for the
modification of a conservator’s duties by court order).
Thus, in Tennessee, SSA cannot assume the funds in a conservatorship account are available
for the support and maintenance of the SSI claimant or recipient. SSA must review
the letters of conservatorship and court order(s) to determine the scope of authority
granted to the conservator by the court.
Sincerely,
M~
Regional Chief Counsel
By: K~
Assistant Regional Counsel