PS 01810.035 New York

A. PS 01-014 SSI Resource Issue - Conservatorship Account of Ancy A~

DATE: March 23, 2000

1. SYLLABUS

The issue concerns a conservatorship account set up for an individual. The Court order allows the Conservator to use the funds for the support and maintenance of the individual. Additionally, the Court ordered the Conservator to send the individual's mother a specific amount of money each month for the individual's food, clothing, medication, medical care and necessities related to his special needs. Thus, since the conservatorship funds are available for the support and maintenance of the individual, they are considered the individual's resource.

2. OPINION

You have requested our assistance in determining whether the conservatorship account of claimant Ancy A~ (the "claimant") is a countable resource to the claimant or whether court-ordered distributions from the conservatorship account should be treated as income to the claimant. We conclude that the conservatorship account is a resource to the claimant.

The Facts

On February 1, 1995, the Supreme Court of the State of New York, County of Queens (the "Court") ordered that Wyatt G~, the Conservator of claimant's account (the "Conservator") "provide for the personal well-being of the Conservatee [the claimant] . . . and to apply so much of the income and principal as necessary for the comfort, well being, support, maintenance and expenses of the Conservatee."

On June 9, 1995, the Court ordered that the Conservator make the following payments out of the funds of the Conservatee:

a. To Ghislaine S~, the mother, custodian and Caretaker of the claimant, $700 per week for the costs associated with home care attendant services;

b. To Ghislaine S~, $1,050 per month to be used as and for food, clothing, medication, medical care and necessaries all associated with the claimant's special needs. The money will be divided as follows:

1. $150 per month for medication; 2. $200 per month for medical care; 3. $350 per month for food; 4. $350 per month for clothing and supplies.

The claimant was born on September 20, 1982.

Discussion

The funds in the conservatorship account are a resource to claimant if they are available for his or her support and maintenance. 20 C.F.R. § 416.1201(a). Pursuant to this regulation, the POMS states that funds in a conservatorship account are considered available if state law permits such funds to be released for an individual's support and maintenance. POMS SI 01140.215B1. If the funds in a conservatorship account result from a personal injury award, absent evidence to the contrary, the funds are not considered a countable resource for minors in New York. POMS SI R01140.215C.1. See 22 N.Y.C.R.R. § 202.67. If the funds did not result from a personal injury award, absent evidence to the contrary, the funds are available for the minor's support and maintenance. POMS SI R01140.215.C.1.

Here, the specific terms of the Court order make it clear that the conservator may use as much of the principal and income as necessary for the "comfort, well being, support, maintenance and expenses of the Conservatee" (emphasis added). Additionally, the Court has also ordered that the Conservator send a specific amount of money each month to claimant's mother for use for claimant's food, clothing, medication, medical care and necessaries related to his special needs. Thus, the requisite evidence shows that the funds are available for the maintenance and support of the claimant. Regardless of the source of the funds, the conservatorship account is a resource to the claimant.

Once claimant turns eighteen, the account is presumed to be a countable resource. SI R01140.215C.1. New York law requires that the guardian (formerly called a conservator) shall "use the property and financial resources and income available therefrom to maintain and support the incapacitated person. . . ." Mental Hygiene Law § 81.20. Thus, after the claimant turns eighteen, both New York Law and the terms of the conservatorship account make it clear that the funds will be available for the care and maintenance of the claimant and thus, will continue to be a resource to the claimant.


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PS 01810.035 - New York - 07/01/2002
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