Identification Number:
GN 00502 TN 59
Intended Audience:See Transmittal Sheet
Originating Office:ORDP OISP
Title:Determining the Need for, Developing and Selecting a Representative Payee
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 005 – Selection of Representative Payee
Subchapter 02 – Determining the Need for, Developing and Selecting a Representative Payee
Transmittal No. 59, 11/02/2020

Audience

PSC: CA, CCRE, CS, ICDS, IES, ISRA, NPR, RECONR, SCPS, TSA, TST;
OCO-OEIO: BTE, CCRE, CR, CTE, FCR, PETL, RECONR;
OCO-ODO: BTE, CCE, CR, CST, CTE, CTE TE, DSE, LCC, PETE, PETL, RECONE;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, DRT, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OISP

Effective Date

Upon Receipt

Background

We updated instructions on State guardianship laws regarding legal incompetency. This transmittal provides updates for Iowa, Maine, Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

 

Summary of Changes

GN 00502.300 Digest of State Guardianship Laws

  • Subsection B - Removed Claims File Record Management Systems (CFRMS) reference. Replaced CFRMS with the Claims File User Interface (CFUI).

  • Subsection B - Added guidance for courts orders older than one year old.

  • Subsection C - Made edits to provide updates on state guardianship laws regarding legal competency.

GN 00502.300 Digest of State Guardianship Laws

A. Purpose of the State digest

An incompetent individual is a person who has been the subject of a judicial finding of incompetency and for whom a legal guardian has been appointed. However, the appointment of a legal guardian, by itself, does not necessarily mean the individual is legally incompetent.

Based on regional chief counsel opinions, we have compiled a digest of State guardianship laws. This digest provides summary information about the appointment of guardians and other persons for individuals who are incapable of managing their personal or financial affairs. Many States now strive for limited guardianships when the individual retains some ability to manage his or her affairs.

Each State synopsis below provides the conditions under which the court’s order constitutes a finding of legal incompetency. Where applicable, each synopsis also provides the conditions under which the court’s order may NOT constitute a finding of legal incompetency or might indicate the need for a representative payee. See the footnotes in the digest for additional information where applicable.

NOTE: 

Legal guardians may have access to the records of the individuals they represent. A representative payee does not have the same access rights as a legal guardian, but has access only to information that is necessary to discharge the duties of a payee. For more information, see GN 03340.030 Providing Access– Incompetent Individual’s Rights.

B. How to use the State digest

Use the digest to determine if the court’s order appointing a guardian means the beneficiary is legally incompetent. If so, you must:

  1. 1. 

    Appoint a representative payee for the beneficiary.

  2. 2. 

    Enter “Yes” on the Court-Appointed Legal Guardian Details screen in the electronic Representative Payee System (eRPS) when you are asked, “Does the claimant have a court-appointed legal guardian?” For further information on this screen, see MS INTRANETERPS 009.007  Court-Appointed Legal Guardian.

  3. 3. 

    Document the details of the court order on the Court-Appointed Legal Guardian Details screen.

  4. 4. 

    Scan and retain the court order through the Non-Disability Repository for Evidentiary Documents (NDRED) using the Claims File User Interface(CFUI) or through the Electronic Disability Claims Folder (eDIB) using eView (for further instructions see GN 00301.322).

IMPORTANT : For court orders made more than one year ago follow GN 00502.023B.4. You may accept the original or a certified copy of the order.

If the court does NOT find the beneficiary legally incompetent, use the digest to determine if the court order otherwise indicates incapability of managing financial affairs and, therefore, the potential need for a representative payee. You should also consider other evidence of capability (see GN 00502.020 through GN 00502.070).

 

C. EXHIBIT –DIGEST OF STATE GUARDIANSHIP LAWS

State

State Court Orders on Legal Incompetency and Type of Person Appointed

Alabama

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for incapacitated persons (lacking sufficient understanding or capacity to make or communicate responsible decisions) or conservator for persons unable to manage property and business affairs effectively.

 

Terms for Person Appointed: Guardian, Conservator

Ala. Code §§ 26-2A-20, 26-2A-102, 26-2A-108, 26-2A-130(c), 26-2A-148

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited guardian or limited conservator requires a case-by-case analysis to determine if the beneficiary is unable to handle benefit payments.

 

Terms for Person Appointed: Limited Guardian, Limited Conservator

Ala. Code §§ 26-2A-105(c), 26-2A-148(a).

Alaska

Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person does not necessarily constitute a finding of legal incompetence. The guardianship plan must be individually analyzed to determine if legal competency was found. However, appointment of a conservator to manage the estate and or affairs of a protected person constitutes a finding of legal incompetence.

 

Term for Person Appointed: Guardian, Full Guardian, Conservator

See Alaska Stat. §§ 13.26.005, 13.26.090, 13.26.113, 13.26.116, 13.26.165

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:

Appointment of a partial guardian who has fewer than all of the legal duties and powers of a full guardian.

Term for Person Appointed: Partial Guardian

See Alaska Stat. § 13.26.113

American Samoa

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for a person mentally or physically incompetent to manage his own property.

 

Term for Person Appointed: Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a guardian not made under American Samoa Code Annotated §§ 40.0401 - 40.0410.

Arizona

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person. An incapacitated person is one who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause (except minority), to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.

 

Term for Person Appointed: Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited guardian. The court order may specify limitations on the guardian’s powers and should be reviewed to determine whether it contains a finding of legal incompetency or otherwise indicates the need for a payee.

 

Term for Person Appointed: Limited Guardian

Arkansas

Conditions Under Which Order May Constitute a Finding of Legal Incompetency:

Appointment of a guardian for an incapacitated person. An incapacitated person is: (1) a person impaired by reason of a disability such as mental illness, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet essential requirements for his health or safety or to manage his estate; (2) a person in the Department of Human Service’s custody as an endangered or impaired adult, 18 years of age or older; (3) a person under age 18 and whose disabilities have not been removed; (4) a person confined or detained by a foreign power; (5) a person who has disappeared; or (6) a person who is under age 21, has a guardianship to continue up to 21 years of age, and receives a guardianship subsidy paid for or approved by the Department of Human Services. Because the law states that “an incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted by order to the guardian by the court,” the court order appointing the guardian for the incapacitated person must be carefully reviewed to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

Terms for Person Appointed: Guardian, Temporary Guardian (90 days). See Ark. Code Ann. §§ 28-65-101, 28-65-104, 28-65-106, 28-65-201, 28-65-218 (2016)

 

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of conservator due to advanced age or physical disability. The court order appointing a conservator due to advanced age or physical disability must be carefully reviewed to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

 

Terms for Person Appointed: Conservator

See Ark. Code Ann. §§ 28-67-103, 28-67-105, 28-67-108 (2016)

California

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a conservator of the person or a conservator of the estate (or both) where there is a finding of incompetency. Generally, the appointment of a conservator of the person is for a person who is unable to provide properly for his or her personal needs, and the appointment of a conservator of the estate is for the person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence.

 

Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Conservator of the Person & Estate.

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited conservator for a developmentally disabled adult. The conservatee is not presumed to be incompetent, and the court order shall define the powers and duties of the limited conservator.

 

Terms for Person Appointed: Limited Conservator

Colorado

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian. Guardians are appropriate only for incapacitated persons.

 

Terms for Person Appointed: Guardian, Temporary Substitute Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a conservator or an emergency guardian or the entry of a protective order is not a determination of legal incompetence.

 

Appointment of a limited guardian requires a case-by-case analysis to determine if the beneficiary is unable to handle benefit payments.

 

Term for Person Appointed: Conservator, Limited Conservator, Limited Guardian, Emergency Guardian

Connecticut

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court will involuntarily appoint a conservator of the estate if it finds the individual is incapable of managing his or her financial affairs or benefits. The court will involuntarily appoint a conservator of the person if it finds the individual is incapable of caring for himself or herself. The order will specify each duty and authority assigned to the conservator. The individual retains all rights and authority not expressly assigned to the conservator.

A court will appoint a plenary (full) guardian when it finds that the severity of the individual’s intellectual disability makes him or her totally unable to meet essential requirements for physical health or safety and totally unable to make informed decisions about matters related to his or her care.

 

 

Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Plenary Guardian

See Conn. Gen. Stat. Ann. §§ 45a-650, 45a-676 (2016)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Competent individuals may also request the appointment of a conservator to manage their financial affairs, but such an appointment is not a judicial finding of legal incompetency. Look at the specific findings made by the court to determine if the conservatorship is voluntary or based on legal incompetency.

 

A court may also appoint a limited guardian, based on a finding that the individual is able to make some, but not all, informed decisions about matters related to his or her care. Look at the order to determine the scope of the individual’s capacity to make decisions.

 

Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Limited Guardian

See Conn. Gen. State. Ann. §§ 45a-646, 45a-676 (2016)

Delaware

Conditions Under Which Order May Constitutes a Finding of Legal Incompetency: Appointment of a guardian does not necessarily constitute a finding of legal incompetence. Review the court order or contact the court, if necessary, to determine if legal incompetency was found.

 

Term for Person Appointed: Guardian, Guardian of the Person

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a guardian of the property does not constitute a finding of legal incompetence, although it may indicate the need for a representative payee.

 

Term for Person Appointed: Conservator, Guardian of the Property

District of Columbia

Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian or conservator for an “incapacitated individual” does not automatically constitute a finding of legal incompetence. An individual found to be incapacitated shall retain all legal rights and abilities other than those expressly limited or curtailed in the order of appointment of a guardian or in a protective order. Review the court order or contact the court, if necessary, to determine if legal incompetency was found.

 

Term for Person Appointed: Guardian, General Guardian, Limited Guardian, Conservator, Limited Conservator

Florida

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Order appointing a plenary guardian of an incapacitated person (one who lacks the capacity to manage property or meet essential health and safety requirements).

 

Term for Person Appointed: Guardian, Plenary Guardian, Public Guardian

Fla. Stat. Ann. §§ 393.12, 744.102, 744.2006(2), 744.2007, 744.3215, 744.331, 744.361.

 

Conditions Under Which Order May Not Constitute Legal Incompetency: Order appointing a limited guardian of an incapacitated person or a guardian advocate of a developmentally disabled person for whom the court order does not specifically delegate rights affecting the ward’s ability to manage finances and property. The order will specify each right the incapacitated person is incapable of exercising and should be reviewed to determine if the court found a lack of capacity affecting the ability to manage benefits.

 

Term for Person Appointed: Limited Guardian, Limited Public Guardian, Conservator, Guardian of the Property, Guardian Advocate

Fla. Stat. Ann. §§ 744.102, 744.2005(2), 744.3085, 744.331, 744.361.

Georgia

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian or conservator (or one of each) for an adult lacking sufficient capacity to make or communicate significant responsible decisions concerning health or safety. Appointment of a conservator for an adult lacking sufficient capacity to make or communicate significant responsible decisions concerning the management of property. Order(s) should be reviewed to determine whether the lack of capacity and delegated rights affect the incapacitated adult’s ability to manage benefits.

 

Terms for Person Appointed: Guardian, Conservator, Emergency Conservator, Emergency Guardian, Judge of the Probate Court (for amounts less than $15,000.00), County Guardian, Public Guardian, DVA Guardian

Ga. Code Ann. §§ 29-1-1, 29-4-1, 29-5-1, 29-6-1, 29-7-4, 29-10-1.

 

Conditions Under Which Order May Not Constitute Legal Incompetency: Appointment of a guardian or conservator where an incapacitated adult may retain the ability to manage benefits.

 

Terms for Person Appointed: Guardian, Conservator, Judge of the Probate Court (for amounts less than $15,000.00), County Guardian, Public Guardian, DVA Guardian

Ga. Code Ann. §§ 29-1-1, 29-4-1, 29-5-1.

Guam

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an insane or incompetent individual. An incompetent person is anyone who by reason of old age, disease, weakness of mind or other cause, is unable, unassisted, to properly manage and take care of himself or his property.

 

Term for Person Appointed: Guardian, General Guardian, Special Guardian

Hawaii

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian or conservator for an incapacitated person. “Incapacitated person” means an individual who, for reasons other than being a minor, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

 

Term for Person Appointed: Guardian of the Person, Conservator of the Estate

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a guardian, which specifies areas in which the ward shall retain the power to make and carry out decisions concerning himself or herself.

Idaho

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a general guardian or guardian with full powers for an incapacitated person. Incapacitated person is one who is impaired, except by minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. The term shall not refer to a developmentally disabled person, as there is a separate process for handling guardianships for persons with developmental disabilities. For an incapacitated person who is unable to manage his or her property and affairs effectively, appointment of a conservator constitutes a finding of legal incompetency. For a developmentally disabled person,[1] appointment of a total guardian or total conservator constitutes a finding of legal incompetency.

 

Term for Person Appointed:

(for incapacitated persons):Guardian with full powers, General Guardian, Conservator, Limited Conservator

See Idaho Admin. Code §§ 15-5-101, 15-5-303, 15-5-304, 15-1-201, 15-13-102, 15-5-420, 15-5-426

 

(for developmentally disabled person):

Total Guardian, Total Conservator

See Idaho Admin. Code §§ 66-402, 66-404, 66-405

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:

For an incapacitated person, appointment of a limited guardian who has fewer than all of the legal duties and powers of a general guardian. For a developmentally disabled person, appointment of a partial guardian who may have fewer than all of the legal duties and powers of a total guardian.

 

Term for Person Appointed:

(for incapacitated persons): Limited Guardian

See Idaho Admin. Code § 15-5-303

(for developmentally disabled persons): Partial Guardian

See Idaho Admin. Code § 66-404

Illinois

Conditions Under Which Order May Indicate a Need for a Payee: A court may appoint a plenary guardian for a person with a disability. Specifically, the court may appoint a plenary guardian of the person or estate or both if clear and convincing evidence demonstrates that, because of the person’s disability, he or she is totally without capacity to make or communicate responsible decisions concerning the care of his or her person or to manage his or her estate or financial affairs.

A person will be adjudged a “person with a disability” where clear and convincing evidence demonstrates that: (1) due to mental deterioration, physical incapacity, mental illness, or developmental disability the individual is not able to manage his person or estate; (2) due to gambling, idleness, debauchery, or excessive use of intoxicants or drugs, the individual so spends or wastes his estate as to expose himself or his family to want or suffering; or (3) the individual is diagnosed with fetal alcohol syndrome or fetal alcohol effects.

 

Terms for Person Appointed: Plenary Guardian, Plenary Guardian of the Person, Plenary Guardian of the Estate

755 Ill. Comp. Stat. Ann. 5/1-2.08, 5/11a-2, 5/11a-3, 5/11a-12

Conditions Under Which Order May Not Constitute Legal Incompetency:(1) A court may appoint a limited guardian of the person or estate or both where clear and convincing evidence demonstrates that an individual adjudged to be a person with a disability (as defined above), due to his or her disability, lacks some but not all of the capacity to make or communicate responsible decisions concerning the care of his or her person or to manage his or her estate or financial affairs.

(2) A court may appoint a temporary guardian where there is a need for the immediate welfare and protection of an alleged person with a disability or his or her estate. A temporary guardian has the limited powers and duties of a guardian of the person or estate, which are specifically enumerated in the court order.

(3) The court may appoint a standby guardian (including a successor standby guardian) to act when the predecessor guardian dies or is no longer willing or able to make and carry out day-to-day decisions concerning the person with a disability. The order appointing the standby guardian will apply the same standards to a standby guardian’s appointment as used in determining the suitability of a limited or plenary guardian. Review the order appointing the standby guardian to determine if the appointment is for a plenary or limited guardianship.

(4) The court may appoint a successor guardian upon the death, incapacity, resignation, or removal of a guardian of the estate or person of a living ward. The powers and duties are the same as those of the predecessor guardian unless modified by the court. Review the order appointing a successor guardian to determine if the appointment is for a plenary or limited guardianship.

(5) The guardian of a person with a disability may appoint, without court approval, a short-term guardian to take over the guardian’s duties when the guardian is unavailable or unable to carry out those duties. Because a short-term guardian is appointed by an existing guardian, such appointment does not constitute a finding of legal incompetence.

(6) The parent of a person with a disability may designate by will a person or corporation to be appointed as a guardian or successor guardian of a person with a disability upon the parent’s death (testamentary guardian). If a conservator (under prior law) or guardian is acting at the time of the parent’s death, the designation of the testamentary guardian becomes effective upon the death, incapacity, resignation or removal of the existing conservator or guardian. Review the court order appointing a testamentary guardian to determine if it is for a plenary or limited guardianship.

 

Terms for Person Appointed: Limited Guardian, Limited Guardian of the Person, Limited Guardian of the Estate, Temporary Guardian, Standby Guardian, Successor Standby Guardian, Successor Guardian, Short-Term Guardian, Testamentary Guardian

755 Ill. Comp. Stat. Ann. 5/1-2.08, 5/1-2.17, 5/1-2.23, 5/1-2.24, 5/11a-2, 5/11a-3, 5/11a-3.1, 5/11a-3.2, 5/11a-4, 5/11a-12, 5/11a-15, 11a-16, 5/11a-18.2, 5/11a-18.3

Indiana

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court must adjudicate that a person is an incapacitated person before it appoints a guardian. In other words, any guardianship under Indiana law constitutes a finding of incompetency. A “guardian” includes a limited guardian, successor guardian, temporary guardian, and standby guardian. The terms guardian and conservator are interchangeable.

An “incapacitated person” is an individual who: (1) cannot be located upon reasonable inquiry; (2) has a developmental disability; or (3) because of an incapacity such as insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, or undue influence of others, is unable to provide self-care and/or manage his or her property, in whole or in part.

NOTE: A court may appoint a “volunteer advocates for seniors and incapacitated adults program” to serve as a guardian for an incapacitated person. A “volunteer advocates for seniors and incapacitated adults” provides reports and recommendations under the supervision of the program. The order should still indicate that the program is being appointed as a guardian, but familiarity with these terms is useful for reviewing such orders.

 

Terms for Person Appointed: Guardian, Limited Guardian, Successor Guardian, Temporary Guardian, Standby Guardian, Conservator

Ind. Code §§ 29-3-1-6, 29-3-1-7.5, 29-3-1-15.5, 29-3-1-17, 29-3-3-4, 29-3-3-7, 29-3-5-2, 29-3-5-3, 29-3-8.5-1, 29-3-8.5-3, 29-3-12-4

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: An adult may voluntarily enter into a supported decision making agreement with a supporter who agrees to help the adult with making, communicating, and effectuating life decisions. Such an agreement is not evidence of incapacity.

Term for Person Appointed: Supporter

Ind. Code §§ 29-3-14-1 to 29-3-14-4, 29-3-14-8

Iowa

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: There is no automatic presumption of complete incompetency or determination of unsound mind. The court order appointing a guardian includes a finding that the decision-making capacity of the individual is so impaired that he or she is unable to care for his or her safety or to provide for necessities such as food, shelter, clothing, or medical care without which physical injury or illness may occur. The court will appoint the least restrictive guardianship possible. The court order may also state that the guardian’s appointment is in the best interest of the individual. All orders of guardianship must be read thoroughly and further guidance should be requested if the order is unclear.

 

 

Term for Person Appointed: Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: An order appointing a guardian or conservator that does not include a finding of incompetency must be reviewed and court contact made, if necessary, to determine if legal incompetency was found.

 

Term for Person Appointed: Limited Guardian, Temporary Guardian, Standby Guardian, Conservator, Limited Conservator, Temporary Conservator, Standby Conservator

Kansas

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finds that the individual is an adult or minor with an impairment in need of a guardian or a conservator, or both. Under those circumstances, the individual’s ability to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assistive technologies or other supports, is impaired such that the person lacks the capacity to manage such person's estate, or to meet essential needs for physical health, safety or welfare, and who is in need of a guardian or a conservator, or both.

 

Term for Person Appointed : Guardian, Conservator

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:

The court order restricts the duties, powers, and responsibilities of the guardian and/or conservator. For instance, if the court appoints a temporary or limited guardian or conservator. Review the court order and contact the court, if necessary, to determine if legal incompetency was found.

 

Terms for Person Appointed : Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator, Standby Guardian, Ancillary Conservator, Standby Conservator

Kentucky

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Court order finds the individual totally disabled to manage financial affairs or totally disabled to manage personal affairs (if the court order does not appoint a guardian or conservator, however, the disability finding has no legal effect). Court orders grants curatorship (not of/for a convict) for a person who has deemed himself or herself unfit to manage his or her person or property by reason of advanced age or physical disability.

 

 

Terms for Person Appointed: Guardian, Conservator, Curator (not Curator of/for convict), Testamentary Guardian, Testamentary Conservator, Standby Guardian, Standby Conservator

Ky. Rev. Stat. §§ 387.510, 387.590, 387.660, 387.690, 387.700, 387.750

 

Conditions Under Which Order May Not Constitute Incompetency: Court order finds individual partially disabled. Review the court order and contact the court, if necessary, to determine if legal incompetence was found.

 

Terms for Person Appointed: Limited Guardian, Limited Conservator, Testamentary Limited Guardian, Testamentary Limited Conservator, Standby Limited Guardian, Standby Limited Conservator

Ky. Rev. Stat. §§ 387.510(2), (4), 387.590, 387.690, 387.750

Louisiana

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a curator for a full interdict. A court orders the full interdiction of a person where the court order finds, due to an infirmity, that a person of the age of majority or an emancipated minor is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

 

Term for Person Appointed: Curator

See La. Civ. Code Ann. arts. 389, 392, 395; La. Code Civ. Proc. Ann. arts. 4551, 4561 (2016)

 

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a curator or limited curator for a person the court has found to be a limited interdict. The court appointing a curator or limited curator for a limited interdict order must be carefully reviewed to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

Terms for Person Appointed: Curator, Limited Curator

See La. Civ. Code Ann. arts. 390, 392, 395; La.Code Civ. Proc.Ann.arts. 4551, 4551, 4561 (2016)

Maine

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Under Maine law, a legally incompetent or “incapacitated person” is an adult who is unable to receive and evaluate information or make or communicate informed decisions to such an extent that he or she lacks the ability to meet essential requirements for physical health, safety, or self-care, even with reasonably available appropriate technological assistance.

Two types of court actions constitute a finding of legal incompetency: (1) establishment of full guardianship (i.e., appointment of a guardian who is empowered to make all decisions about another individual’s personal affairs under Maine law); and/or (2) establishment of full conservatorship (i.e., appointment of a conservator who is empowered to make all decisions about another individual’s property or financial affairs under Maine law).

NOTE: The court will issue Letters of Office upon the acceptance of the appointment of a guardian or conservator that will identify any limitations on the guardian’s or conservator’s powers. There should be no limitations with the establishment of a full guardianship or full conservatorship.

 

 

Terms Used In Letters of Office: Full Guardianship, Full Conservatorship

See Me. Rev. Stat. tit. 18-C, §§ 1-201, 5-102, 5-108, 5-301, 5-401(2)(A) (2019)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: When the establishment of a guardianship or conservatorship is limited—e.g., as with a limited guardianship, limited conservatorship, protective arrangement, or another less restrictive alternative to a full guardianship or full conservatorship—it may or may not show that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care. In such situations, legal competency must be evaluated on a case-by-case basis.

 

Terms Used In Letters of Office: Limited Guardianship, Limited Conservatorship, Protective Arrangement

See Me. Rev. Stat. tit. 18-C, §§ 5-301(2), 5-401(3) (2019)

Maryland

 

 

 

 

Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian of the person is not evidence of incompetency of the disabled person (MD C s13-706). Guardianship appointments must be individually analyzed and court contact will be required to determine if legal incompetency was found.

An appointment of a guardian of person is based on a finding that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs, and that no less restrictive form of intervention is available which is consistent with the person’s welfare and safety. MD code s13-705

 

Terms for Person Appointed: Guardian of the Person

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: A court order appointing a guardian of an individual's property has no bearing on the issue of capacity of the alleged disabled person to care for his own person. Analyze each case individually and contact the court if you need more information to determine the need for a representative payee.

 

Terms for Person Appointed: Guardian of the Property

Massachusetts

Conditions Under Which Order May Constitutes a Finding of Legal Incompetency:

A court may appoint a plenary (full) guardian for an incapacitated person, who is defined as having a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance. A guardian protects the person only, not the person’s property. A full/plenary guardianship generally removes from an incapacitated person all personal decision-making responsibility and authority.

 

A court may also appoint an unlimited conservator for a person to be protected, based in part on the individual’s inability to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance. A conservator protects the person’s property and business affairs. A full/plenary conservatorship generally removes from a person to be protected all control over his or her assets.

 

Terms for Persons Appointed: Guardian, Conservator

See Mass. Gen. Laws Ann. ch. 190B, §§ 5-306, 5-401 (2009)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited guardian or conservator requires a case-by-case analysis to determine if the beneficiary is unable to handle benefit payments. The concept of limited guardianship or conservator allows the Court to address specific areas of incapacity and tailor guardianship decrees (letters) to meet an individual’s unique circumstances. Individuals may be competent for one purpose and not competent for another. For example, if appropriate, a guardianship may be limited or apply only to medical treatment decisions.

 

 

Terms for Persons Appointed: Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator

See Mass. Gen. Laws. Ann. ch. 190B, §§ 5-306, 5-401, 5-412A (2009)

Michigan

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: (1) A court may appoint a plenary guardian of the person or estate or both if it finds by clear and convincing evidence that the individual is developmentally disabled and is totally without capacity to care for himself or herself or his or her estate. (2) A court may appoint a full guardian if it finds by clear and convincing evidence that the individual is incapacitated and is totally without capacity to care for himself or herself.

 

Terms for Person Appointed: Plenary Guardian of the Person or Estate or Both, Full Guardian

Mich. Comp. Laws Ann. §§ 330.1618, 700.5306

 

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: (1) A court may appoint a partial guardian if it finds by clear and convincing evidence that the individual is developmentally disabled and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or his or her estate. The appointment of a partial guardian does not constitute a finding of legal incompetence or incapacity except in those areas specified by the court.

(2) A court may appoint a limited guardian if it finds by clear and convincing evidence that the individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself.

(3) If an emergency exists, a court may appoint a temporary guardian for either a developmentally disabled or an incapacitated individual. The temporary guardian only has the powers and duties specifically enumerated by court order.

(4) A parent who is the guardian of an adult child with a developmental disability may appoint a testamentary guardian by will (except when a standby guardian has been designated). The testamentary guardian has the same powers as those of the initially appointed guardian. Review the court order creating or modifying the initial guardianship to determine what type it was. Similarly, a parent who is the guardian of an unmarried legally incapacitated individual or a spouse who is the guardian of a married legally incapacitated individual may appoint by will or other writing a guardian of the legally incapacitated individual. The statute does not indicate what type of guardian is appointed.

(5) A standby guardian may be designated by the court for a developmentally disabled individual, and his or her appointment becomes effective upon the death, incapacity, or resignation of the initially appointed guardian. The standby guardian has the same powers as those of the initially appointed guardian. Review the court order creating or modifying the initial guardianship to determine what type it was.

(6) A conservator may be appointed where an individual is unable to manage his or her property or business affairs due to mental illness or deficiency, physical illness or disability, chronic use of drugs or intoxication, confinement, detention by a foreign power, or disappearance. A conservator may also be appointed when an individual who is mentally competent has requested one because of age or physical infirmity. A limited conservator or special conservator has authority over only specified portions of the individual’s property.

 

Terms for Person Appointed: Partial Guardian, Limited Guardian, Temporary Guardian, Testamentary Guardian, Standby Guardian, Conservator, Limited Conservator, Special Conservator

Mich. Comp. Laws Ann. §§ 330.1100, 330.1489, 330.1540, 330.1600, 330.1607, 330.1618, 330.1620, 330.1640, 330.1642, 700.1105, 700.5301, 700.5306, 700.5311-700.5314, 700.5401, 700.5408, 700.5412, 700.5419

Minnesota

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: (1) A court may appoint a guardian if it finds by clear and convincing evidence that an individual is an incapacitated person and that his or her needs cannot be met by less restrictive means. The appointed guardian may be a limited guardian or an unlimited guardian. The court may also appoint an additional guardian to serve immediately or upon some designated event.

An incapacitated person is a person who, for reasons other than being a minor, (1) lacks sufficient understanding or capacity to make personal decisions; and (2) is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological and supported decision making assistance. (2) If the court finds that an appointed guardian is not effectively performing his or her duties, it may appoint a temporary substitute guardian for up to six months. The temporary substitute guardian has the same powers as the previous guardian (i.e., unlimited or limited).(3) The court may appoint a successor guardian in the event of a vacancy or make the appointment prior to a vacancy, to serve when a vacancy occurs. A successor guardian succeeds to the predecessor’s powers.

 

Terms for Person Appointed: Guardian, Unlimited Guardian, Limited Guardian, Additional Guardian, Temporary Substitute Guardian, Successor Guardian

Minn. Stat. §§ 524.5-102, 524.5-112, 524.5-303, 524.5-310, 524.5-312

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: (1) An individual’s parent (if the individual is unmarried) or spouse (if the individual is married) may appoint a guardian for the individual by will or other writing. Such an appointment is not a determination of incapacity, as the parent or spouse need only believe that the individual is an incapacitated person. The appointment must be confirmed by the court, but such confirmation is not a determination of incapacity.

(2) A court may appoint an emergency guardian where no one else has authority and willingness to act in the circumstances and following the procedures for appointment of a guardian would likely result in substantial harm to the respondent’s welfare. The appointment of an emergency guardian is not a determination of incapacity.

(3) A court may appoint a limited or unlimited conservator where an individual is unable to manage his or her property and business affairs. The court may also appoint an additional conservator to serve immediately or upon some designated event. Further, the court may appoint an emergency conservator, temporary substitute conservator, or successor conservator. The appointment of any type of conservator is not a determination of incapacity.

 

 

 

Terms for Person Appointed: Guardian, Emergency Guardian, Conservator, Unlimited Conservator, Limited Conservator, Additional Conservator, Emergency Conservator, Temporary Substitute Conservator, Successor Conservator

Minn. Stat. §§ 524.5-102, 524.5-301, 524.5-302, 524.5-311, 524.5-401, 524.5-409

Mississippi

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian for an adult person.

 

Terms for Person Appointed: Guardian, Clerk of the Chancery Court

Miss. Code Ann. §§ 93-13-15, 93-13-21, 93-13-121, 93-13-125, 93-13-129

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: A court appointment of a conservator for reasons of advanced age, physical incapacity, or mental weakness. Review the court order for a finding regarding incompetency. Contact the court if you need more information to determine the need for a representative payee.

 

 

Terms for Person Appointed: Conservator

Miss. Code Ann. §§ 93-13-251, 93-13-255, 93-13-259

Missouri

Conditions Under Which Order Constitutes a Finding of Legal Incompetency:

Letters of guardianship may be issued when the court finds a person is incapacitated. Incapacitated is defined as being unable, due to a physical or mental condition, to receive and evaluate information or to communicate decisions to such an extent that the individual lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

Letters of conservatorship may be issued when the court finds a person is disabled. Disabled is defined as being unable, due to a physical or mental condition, to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources.

A person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent. A person who has been adjudicated partially incapacitated or partially disabled or both shall be presumed to be competent

 

Terms for Person Appointed: Guardian, Conservator

 

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: When the court finds a person partially incapacitated or partially disabled or both, that individual is presumed to be competent. The court may appoint a limited guardian or limited conservator. Review the letters of appointment or court order carefully and request additional information from the court, if necessary.

 

Terms for Person Appointed: Limited Guardian, Limited Conservator

Montana

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: None.

An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those that have been expressly limited by court order or have been specifically granted to the guardian by the court. Therefore, it is always necessary to examine the order of appointment to determine if the beneficiary is unable to handle benefit payments.

 

Terms for Person Appointed: Full Guardian, Limited Guardian

Nebraska

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: The court order appoints a guardian for an incapacitated person. An incapacitated person means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself. However, when finding that a guardianship should be created, the guardianship will be limited unless the court finds by clear and convincing evidence that a full guardianship is necessary.

 

Terms for Person Appointed: Guardian

 

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: A court order appointing a limited, temporary, or standby guardian or conservator, whose duties are specified in the letters of appointment of the guardian or conservator, or appointing a guardian or conservator for a specific time or purpose.

 

Analyze each case individually and contact the court if you need more information to determine legal competency.

 

Terms for Person Appointed: Limited Guardian, Temporary Guardian, Conservator, Standby Guardian Limited Conservator, Temporary Conservator, Standby Conservator

Nevada

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finds the beneficiary incompetent. An incompetent person includes any person who, by reason of mental illness, mental deficiency, advanced age, disease, weakness of mind or any other cause, is unable, without assistance, to properly manage and take care of himself or his property

 

Terms for Person Appointed: Guardian, Guardian of the Person, Guardian of the Estate, or Guardian of the Person and Estate, General Guardian, Guardian ad Litem

 

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: The court will appoint a special guardian if it finds that the person for whom a guardian is sought is of limited capacity and in need of a special guardian. The special guardian has the powers set forth in the court’s order. The court will not appoint a guardian for a person whom the court finds competent and not in need of a guardian.

 

Terms for Person Appointed: Special Guardian

New Hampshire

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian is also a finding that the person is legally incapacitated (i.e., the person lacks the capacity to care for him or herself or his or her estate).

 

Terms for Person Appointed: Guardian of the Person, Guardian of the Estate

See N.H. Rev. Stat. Ann. § 464-A

 

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: A court order appointing a conservator. Such appointments are voluntarily requested by individuals who believe they are unfit to manage their property or financial affairs. They do not reflect a court finding of legal incompetency.

 

Terms for Person Appointed: Conservator, Temporary Guardian, Guardian Ad Litem (does not have same powers as Guardian)

See N.H. Rev. Stat. Ann. § 464-A

New Jersey

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finds the person incapacitated and appoints a general guardian. An incapacitated individual is a person who is impaired by reason of mental or physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself or herself and manage his or her affairs.

 

Terms for Person Appointed: General Guardian, Plenary Guardian, Testamentary Guardian

 

Conditions Under Which Order M ay Not Constitute a Finding of Legal Incompetency: A court order finds the person lacks capacity to do some, but not all, of the tasks necessary for self-care. A court order appointing a conservator or guardian ad litem.

Review the court order to see whether it indicates an incapability of managing financial affairs. Contact the court if you need more information to determine the need for a representative payee.

 

Terms for Person Appointed: Limited Guardian, Limited Guardian of the Person, Limited Guardian of the Estate, Limited Guardian of the Person and Estate, Conservator, Pendente Lite Temporary Guardian, Special Guardian.

New Mexico

Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian or conservator for an incapacitated person. An incapacitated person means any person who demonstrates partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent that the person is unable to manage his or her personal affairs or unable to manage his or her estate or financial affairs or both.

 

The law provides that an incapacitated person for whom a guardian or conservator has been appointed retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian or conservator by the court. The law also provides that a court may find a person totally incapacitated or incapacitated only in specific areas. Thus, the court order appointing the guardian or conservator for the incapacitated person must be carefully reviewed to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

Terms for Person Appointed: Guardian, Limited Guardian, Conservator, Limited Conservator

See N.M. Stat. Ann. §§ 45-5-101, 45-5-301.1, 45-5-304, 45-5-311,45-5-312, 45-5-401,45-5-407(2016)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a conservator where a person has property that may be wasted or dissipated, funds are needed for his support or that of his dependents, protection is necessary to obtain or provide funds, AND the person is unable to manage his estate and financial affairs effectively for reasons such as confinement, detention, by a foreign power, or disappearance. The court appointing a conservator might not make a finding as to whether the person is also incapacitated.

 

Appointment of a limited conservator if it determines that the incapacitated person is able to manage some but not all aspects of his estate and financial affairs.

 

The court order appointing a conservator or limited conservator must be carefully reviewed to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

Terms for Person Appointed: Conservator, Temporary Conservator , Limited Conservator,

See N.M. Stat. Ann. §§ 45-5-101, 45-5-401, 45-5-407 (2016)

New York

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Court order appointing a committee or finding a person to be incompetent. However, this type of order will be rare.

 

Terms for Person Appointed: Guardian, Committee

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: The appointment of a guardian (on or after April 1, 1993) or conservator does not indicate a person is legally incompetent. Review the court order to see whether it indicates an incapability of managing financial affairs. Contact the court if you need more information to determine the need for a representative payee.

 

 

Terms for Person Appointed: Guardian, Conservator, Guardian ad Litem

North Carolina

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian and finding the adult incompetent. An incompetent adult is an adult or emancipated minor who lacks sufficient capacity to manage his or her own affairs or make or communicate important decisions concerning such person, family, or property, due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.

 

Terms for Person Appointed: General Guardian, Guardian of the Estate, Public Guardian, Guardian (for veterans),Ancillary Guardian, Successor Guardian

N.C. Gen. Stat. Ann. §§ 35A-1101, 35A-1112, 35A-1120, 35A-1202, 35A-1280, 35A-1293; cf. N.C. Gen. Stat. Ann. §§ 34-2, 34-5 (related to the Veterans’ Guardianship Act).

 

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetence: A court order where there are express terms of limitation on the guardian’s powers or duties. An appointment for a temporary period prior to adjudication of incompetence.

 

 

Term for Person Appointed: Guardian, Guardian of the Person, Guardian of the Estate, Interim Guardian, Limited Guardian, Standby Guardian, Alternate Standby Guardian, Guardian ad litem

N.C. Gen. Stat. Ann. §§ 35A-1101, 35A-1114, 35A-1202, 35A-1212(a), 35A-1241, 35A-1370, 35A-1372-1374.

North Dakota

Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person.

 

Terms for Person Appointed: Full Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a conservator or a limited guardian.

Appointment of a limited guardian requires a case-by-case analysis to determine if the beneficiary is unable to handle benefit payments.

 

Terms for Person Appointed: Conservator, Limited Guardian

Ohio

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian constitutes an adjudication of incompetency. A “guardian” is any person, association, or corporation appointed by a probate court to have the care and management of the person or estate or both of an incompetent. A guardian includes a limited guardian, an interim guardian, a standby guardian, and an emergency guardian. As such, any guardianship under Ohio law constitutes a finding of incompetency. If the powers of the person appointed as guardian are not limited by the order of appointment, the person is guardian of both the person and the estate.

An “incompetent” is a person who, because of mental or physical illness or disability, intellectual disability, or chronic substance abuse, is so mentally impaired that he or she is incapable of taking proper care of himself or herself or property, or fails to provide for his or her family or others for whom he or she is charged by law to provide.

 

 

Terms for Person Appointed: Guardian, Limited Guardian, Interim Guardian, Standby Guardian, Emergency Guardian

Ohio Rev. Code Ann. §§ 2111.01, 2111.02, 2111.06, 2111.13, 2111.14, 2111.15

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: An appointment of a conservator does not constitute a finding of incompetency. A competent adult who is physically infirm may petition the probate court to place his or her person and any or all of his or her real and/or personal property under a conservatorship for a definite or indefinite period of time.

 

Terms for Person Appointed: Conservator

Ohio Rev. Code Ann. § 2111.021

 

Oklahoma

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person. An incapacitated person is 18 or older and is impaired due to mental illness, mental retardation or developmental disability, physical illness or disability, drug or alcohol dependency, or a similar cause AND the individual lacks capacity to meet essential requirements for health and safety, or is unable to manage finances. The law states that the term “incapacitated person” is the same as “incompetent person” (but does not include a “partially incapacitated person”).

Term for Person Appointed: Guardian, General Guardian, Special Guardian

See Okla. Stat. Ann. tit. 30, §§ 1-108,1-109,1-110, 1-111, 1-119, 3-111, 3-112, 3-115 (2016)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a guardian for a partially incapacitated person. A partially incapacitated person means an incapacitated person who is impaired only to extent that without the assistance of a limited guardian the person is unable to meet essential requirements for physical health or safety, or to manage finances or to engage in all of the activities necessary for the effective management of his financial resources. The law states that “[a] finding than an individual is a partially incapacitated person shall not constitute a finding of legal incompetence” and that the person shall retain all legal rights and abilities other than those expressly limited in the court’s order.

 

Appointment of a conservator due to a person’s physical disability alone.

 

The court order appointing a guardian for a partially incapacitated person or appointing a conservator due to a person’s physical disability must be carefully reviewed to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

Terms for Person Appointed: Conservator, Guardian, General Guardian, Limited Guardian, Special Guardian

See Okla. Stat. Ann. tit. 30, §§ 1-108,1-109,1-110,1-111,1-119, 1-120, 3-111, 3-112, 3-113, 3-114, 3-115, 3-211, 3-212, 3-215 (2016)

Oregon

Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a Guardian for an incapacitated person does not necessarily constitute a finding of legal incompetence. Incapacity is a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety. Letters of Guardianship must be individually analyzed to determine legal competency.

 

Oregon’s Letters of Conservatorship are legal evidence of incapability for the purpose of determining the need for a representative payee, even if the letters do not specify that the beneficiary is financially incapable or legally incompetent.

 

Terms for Appointed: Conservator, Guardian

See Oreg. Rev. Stat. §§ 125.005, 125.300, 125.400

Pennsylvania

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finding a person totally incapacitated. An incapacitated person is an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

 

Terms for Person Appointed: Plenary Guardian of the Person

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order finds the person "partially incapacitated" and appoints a limited guardian of person or estate. Except in areas designated by court order as areas over which the legal guardian has power, a partially incapacitated person retains all legal rights.

 

Terms for Person Appointed: Limited Guardian of the Person, Limited Guardian of the Estate

Puerto Rico

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finds the person to be an unemancipated minor, an insane or demented person, a deaf person who cannot understand or communicate effectively by any means, a prodigal or habitual drunkard, or an individual who has been declared a drug addict by final judgment.

 

Terms for Person Appointed: Tutor, Guardian, Testamentary Tutor, Testamentary Tutor over the Person, Testamentary Tutor over the Property, Testamentary Tutor over the Person and the Property

Rhode Island

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian is also a finding that the person is totally, legally incapacitated.

 

Terms for Persons Appointed: Guardian

See 33 R.I. Gen. Laws Ann. § 33-15-4 (2007)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a more limited guardianship based on a finding that the person is less than totally incapacitated. In such cases, review the findings in the court order to determine the nature of the person’s limitations. An order appointing a conservator means that the court found the person incapable of properly caring for his or her property.

 

Terms for Persons Appointed: Limited Guardian, Temporary Guardian, Guardian ad Litem, Conservator, Good Samaritan Guardian

See 33 R.I. Gen. Laws Ann. §§ 33-15-4, 33-15-4.1, 33-15-7, 33-15-8.1, 33-15-44

South Carolina

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finding the person to be incapacitated by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he or she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person or property. Review the court order for a finding regarding incapacity. Contact the court if you need more information to determine the need for a representative payee.

 

Terms for Person Appointed: Guardian, Conservator

S.C. Code Ann. §§ 62-1-201, 62-5-101, 62-5-303-304, 62-5-401, 62-5-407, 62-5-426; cf. 62-5-700-62-5-716 (related to interstate guardianship under the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act).

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court ordering the appointment of a limited guardian explaining the specific legal disabilities to which a partially disabled ward is subject. A court ordering the appointment of a temporary guardian. Analyze each case individually and contact the court if you need more information to determine the need for a representative payee.

 

Terms for Person Appointed: Limited Guardian, Temporary Guardian

S.C. Code Ann. §§ 62-5-304(C), 62-5-310.

South Dakota

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Only if the court order specifically includes a finding of legal incompetence.

 

The appointment of a guardian or conservator does not constitute a general finding of legal competence unless the court so orders. Therefore, it is always necessary to examine the order of appointment to determine if the court has made a specific finding regarding incompetency (and if not, whether the beneficiary is unable to handle benefit payments).

 

Terms for Person Appointed: Guardian, Conservator, Limited Guardian, Limited Conservator

Tennessee

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finding a person with a disability, meaning any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity.

 

Terms for Person Appointed: Conservator, , Guardian (for minors), District Public Guardian, District Public Conservator, Fiduciary (for a person with a disability), Standby Fiduciary (for a person with a disability)

Tenn. Code Ann. §§ 34-1-101, 34-1-119, 34-1-126, 34-3-107, 34-7-104; cf. 34-8-101-34-8-503 (related to interstate guardianship under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act).

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Court orders or appointments that find a disabled person in need of partial supervision, protection and assistance by reason of mental illness, physical illness or injury, developmental disability or other physical or mental incapacity. Review the court order for a finding regarding partial disability. Contact the court if you need more information to determine the need for a representative payee.

 

 

Terms for Person Appointed: Conservator, , Guardian (for minors), District Public Guardian, District Public Conservator, Fiduciary (for a person with a disability), Standby Fiduciary (for a person with a disability), Emergency Guardian, Emergency Conservator

Tenn. Code Ann. §§ 34-1-101, 34-1-119, 34-1-126, 34-1-132, 34-7-104.

Texas

Conditions Under Which Order Constitutes a Finding of Legal Incompetency:

Appointment of a guardian with full authority over an incapacitated person. The law provides in general that all of the following mean an incapacitated person: a person who is mentally, physically, or legally incompetent; a person who is judicially declared incompetent; an incompetent or an incompetent person; a person of unsound mind; or a habitual drunkard. Under guardianship law specifically, an incapacitated person is a minor or an adult person who, because of physical or mental condition, is substantially unable to: provide his food, clothing, or shelter; care for his physical health; or manage his financial affairs; OR a person who must have a guardian to receive funds from a governmental source.

 

Term for Person Appointed: Guardian

See Tex. Estates Code Ann. §§ 1001.003, 1002.012, 1002.017, 1101.151 (2016)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a temporary guardian over a person. The law provides that a person for whom a temporary guardian is appointed may not be presumed to be incapacitated.

 

Appointment of a guardian with limited authority over an incapacitated person. If the court finds that the individual lacks capacity to do some, but not all, of the tasks necessary to care for himself or manage his property, the court may appoint a guardian with limited powers as specified in the court order.

 

The court order appointing a temporary guardian over a person or appointing a guardian with limited authority must be reviewed carefully to determine whether it contains a finding of legal incompetency or whether it otherwise indicates the need for a payee.

 

Terms for Person Appointed: Guardian, Temporary Guardian

See Tex. Estates Code Ann. §§ 1002.012, 1101.152, 1251.001, 1251.002, 1251.010 (2016).

U.S. Virgin Islands

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order or appointment finding the person to be an insane person, an idiot, a lunatic, a person incapable of conducting their own affairs, or a spendthrift.

 

Terms for Person Appointed: Guardian, Testamentary Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: The court order appoints a “guardian ad litem.”

Utah

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order finding the person incapacitated. A guardian of an incapacitated person has only those powers, rights, and duties respecting the incapacitated person or ward that are specified in the order of appointment. If the order of appointment does not contain a specific limitation on the guardian’s power, the guardian has the same powers, rights, and duties that a parent has with regard to a minor child.

 

Examine the order of appointment to determine whether there is a limitation on the guardian’s power and for additional evidence regarding the degree of incapacitation.

 

Terms for Person Appointed: Guardian, Temporary Guardian, Emergency Guardian

Vermont

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian is also a finding that the individual is unable to manage any or all aspects of his or her personal care and financial affairs.

 

Terms for Persons Appointed: Guardian

See Vt. Stat. Ann. tit. 14, § 3069 (2011)

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a limited guardian. In such cases, review the findings in the court order to determine the nature of the person’s limitations.

 

Terms for Persons Appointed: Limited Guardian, Temporary Guardian, Public Guardian, , Guardian Ad Litem, Guardian of the Property (for non-residents)

See Vt. Stat. Ann. tit. 14, §§ 3066, 3069, 3081, 3092

Virginia

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order that finds that a person is incapacitated. An incapacitated person is an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.

 

Terms for Person Appointed: Conservator, Guardian

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointments of “limited” and “temporary” guardians and conservators should be reviewed for findings of incapacity. A finding that the individual displays poor judgment, alone, shall not be considered sufficient evidence that the individual is an incapacitated person.

 

Terms for Person Appointed: Limited Guardian, Temporary Guardian, Limited Conservator, Temporary Conservator

Washington

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person. A person is incapacitated and, therefore, incompetent if, (by reason of minority or mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity), the person has demonstrated inability to adequately manage his or her property or financial affairs, care for himself or herself, or both.

 

Terms for Person Appointed: Guardian, See Wash. Rev. Stat. § 11.88.010

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:

Appointment of a Limited Guardian who has fewer than all of the legal duties and powers of a Guardian.

 

Term for Person Appointed: Limited Guardian

See Wash. Rev. Stat. § 11.88.010(2)

West Virginia

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order specifies that the appointment is because the “protected person” is mentally incompetent. A protected person is an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be 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.

 

Terms for Person Appointed: Guardian, Conservator

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a guardian that specifies that the appointment is because the “protected person” is mentally handicapped or mentally retarded, the appointment of a guardian would not constitute a finding of legal incompetence. Court should appoint least restrictive guardianship or conservatorship possible.

Terms for Person Appointed: Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator

Wisconsin

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: (1) A court order may appoint a guardian of the estate for an individual if it finds by clear and convincing evidence that the individual is a spendthrift. A “spendthrift” is a person who, because of the use of alcohol or other drugs, gambling, or other wasteful conduct, is unable to manage effectively his or her financial affairs or is likely to affect the health, life, or property of himself or herself or others so as to endanger his or her support and the support of any dependents, or expose the public to responsibility for such support.

(2) A court may appoint a guardian of the person or estate or both for an individual if it finds by clear and convincing evidence that the individual is incompetent. An “incompetent” individual is one who, because of an impairment, is unable effectively to receive and evaluate information or to make or communicate decisions to meet the essential requirements for his or her physical health and safety and/or to manage his or her property or financial affairs.

(3) A court may appoint coguardians of the person or estate, subject to any conditions that the court imposes.

(4) A court may designate a standby guardian whose appointment will become effective upon the death, unwillingness, inability to act, resignation, or removal of the initial guardian or during a period when the initial guardian is temporarily unable to fulfill his or her duties.

(5) A court may appoint a successor guardian if a guardian dies, is removed by the court, or resigns.

 

Terms for Person Appointed: Guardian, Guardian of the Estate, Guardian of the Person or Estate or Both, Coguardians, Standby Guardian, Successor Guardian

 

Wis. Stat. Ann. §§ 54.01, 54.10, 54.52, 54.54

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:

(1) A court may appoint a temporary guardian of the person or estate if it finds that the individual’s situation requires the immediate appointment of a temporary guardian. An appointment of a temporary guardian does not constitute a finding of incompetence, as it only requires a showing of a reasonable likelihood of incompetence.

(2) An appointment of a conservator does not constitute evidence of incompetency. Any adult resident who is unwilling or believes that he or she is unable properly to manage his or her assets or income may voluntarily apply to the court for appointment of a conservator of the estate. A court may also appoint a standby conservator or successor conservator.

 

Notably, a court must deny an application to terminate a conservatorship if it finds that the individual is incompetent/incapable of handling his or her income and assets. Review any court order following a termination application to determine if the court made any finding regarding the individual’s competence to manage his or her income and assets.

 

Terms for Person Appointed: Temporary Guardian,

Temporary Guardian of the Person or Estate, Conservator, Conservator of the Estate, Standby Conservator, Successor Conservator

 

Wis. Stat. Ann. §§ 54.01, 54.50, 54.76

Wyoming

Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order specifically finds the person to be incompetent.

Terms Related to Person Responsible for Guardianship: Guardian, Conservator, Guardian of the Estate, Guardian of the Property, Temporary Guardian.

 

Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order may appoint a guardian or conservator on voluntary petition even if the petitioner is not a mentally incompetent person.

The court order should be examined in order to determine if the court made a finding of incompetency.


GN 00502 TN 59 - Determining the Need for, Developing and Selecting a Representative Payee - 11/03/2020