This memorandum is to provide an opinion on whether the Social Security Administration
(Agency) should give a Texas court-appointed guardian ad litem (guardian ad litem)
the same level of priority that the Agency gives a court-appointed legal guardian
(legal guardian) under the applicant preference list inscribed in Program Operations
Manual System (POMS) Records Maintenance (RM) 00202.005(C)(3). If not, you asked whether
the Agency should consider the guardian ad litem as either a state licensed agency
or an individual in the lowest level of priority under the applicant preference list.
In our opinion, a guardian ad litem does not have the same level of priority that
a legal guardian has under the applicant preference list because the guardian ad litem
does not have either the same or similar legal authority over an individual's person
or estate that a legal guardian has under Texas law. Because a guardian ad litem's
authority does not include having legal custody of an individual, the Agency should
consider the guardian ad litem in the lowest priority in the applicant preference
list.
As we understand the facts, in the State of Texas, a court may appoint a guardian
ad litem to represent the interest of a child. Texas Family Code Ann. § 107.011. A
Texas court may also appoint the Texas Department of Family and Protective Services
(Department) as a temporary or permanent managing conservator of a child. Either a
court-appointed guardian ad litem or the Department may apply for a Social Security
card on behalf of a child. The Agency will consider an applicant with a lower priority
when no one with a higher priority exists on the applicant preference list. POMS §
RM 00202.005(C)(3).
The Intelligence Reform and Terrorism Prevention Act requires the Agency to "establish
minimum standards for verification of documents or records submitted by an individual
to establish eligibility for an original or replacement [S]ocial [S]ecurity card."
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B).
An individual may complete and sign Form SS-5, "Application for a Social Security
Number Card," to apply for a Social Security number or request a replacement Social
Security card. See 20 C.F.R. § 422.103(b) and (e).
The POMS provides that a proper applicant for signing Form SS-5 is the person who
can apply for and receive a Social Security card on his or her own behalf or on behalf
of another person. POMS § RM 00202.005(B). Applicants who are eighteen years of age or older and are physically and mentally
capable of reading and completing Form SS-5 must sign the application on their own
behalf. Id. § RM 00202.005(C)(1). If physically and mentally capable of reading and completing Form SS-5, a
child of any age may sign a Form SS-5 on his or her own behalf. Id. § RM 00202.005(C)(2). In some situations, such as when a child lives at home with both parents,
the Agency may consider more than one individual as a proper applicant. Id. § RM 00202.005(B). If an individual is not able to file an application on his or her own behalf,
a proper applicant must establish a relationship to, custody of, and/or responsibility
for a minor child or an individual age eighteen or over who is physically or mentally
incapable of reading and completing Form SS-5. Id. § RM 00202.005(C). The POMS lists proper applicants who may request a Social Security card in the
following priority order:
A court-appointed legal guardian (individual or an agency) always has priority over
any other proper applicants;
A parent (natural, adoptive, or step) with custody of a child;
Administrator of the individual's (adult or child) estate;
A brother, sister, grandparent, aunt, or uncle with custody of a child;
A state agency or a state licensed agency if it has legal custody of the individual
(adult or child); or
An individual who applies on behalf of another individual (adult or child) who can
establish relationship and responsibility.
Id. § RM 00202.005(C)(3). The Agency will consider an applicant with a lower priority when no one with
a higher priority on the applicant preference list exists. Id.
The Agency must verify that the relationship, custody, or responsibility is established
in every case in which an applicant is other than the person to whom the card will
be issued. Id. § RM 00202.005(D). A court document that shows the applicant has legal guardianship is sufficient
evidence to establish relationship, custody, and/or responsibility. Id. § RM 00202.005(D)(1). Court documents that give a state agency, or a state licensed agency, custody
of an individual establish the relationship, custody, and/or responsibility. Id. § RM 00202.005(D)(5).
In Texas, a governmental entity (state agency) with an interest in a child, such as
the Department, may file a Suit Affecting The Parent-Child Relationship (SAPCR) requesting
to take possession of the child or to terminate the parent-child relationship. Tex.
Fam. Code Ann. §§ 262.001, 262.006, 262.008, 262.105. In the SAPCR, the Texas court
may appoint the Department as the temporary or permanent managing conservator of the
child. Id. §§ 105.001, 262.002, 262.201(c). A court appointed, nonparent managing conservator
has the right to have physical possession of the child; to receive and give receipt
for payments for the support of the child; to hold or disburse funds for the benefit
of the child; to the services and earnings of the child; and to designate the primary
residence of the child. Id. § 153.371. In addition, a court appointed, nonparent managing conservator has the
duty of care, control, protection, and reasonable discipline of the child. Id. § 153.371.
In the SAPCR, a Texas court may appoint a guardian ad litem to represent the best
interests of the child. Id. § 107.001(5). In Texas, a court appoints a guardian ad litem to protect the interest
of a minor in a lawsuit in which the minor is a party. American General Fire & Casualty Company v. Vandewater, 907 S.W.2d 491, 493 n. 2 (Tex. 1995) (citing Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex. App.-Dallas 1984, no writ)). In the SAPCR, the guardian
ad litem may be a charitable organization or an individual who has received the court's
approved training regarding abuse and neglect and who the court has certified to appear
at court hearings as a guardian ad litem or as a volunteer advocate for the child.
Tex. Fam. Code Ann. §§ 107.001(5), 107.011(b), 107.031. The guardian ad litem is an
officer of the court, who is entitled to receive copies of pleadings; to receive notice
of each hearing; to attend all legal proceedings in the court-appointed case; and
to review and sign, or decline to sign, an agreed order affecting the child. Id. § 107.002(c); Vandewater, 907 S.W.2d at 493 n. 2. The guardian ad litem has the authority to conduct an investigation
to determine the best interests of the child and to obtain and review the child's
medical, psychological, and school records. Tex. Fam. Code Ann. § 107.002(a).
A guardian ad litem does not have the same legal authority over a person that a legal
guardian has under Texas law. A legal guardian is a person whom the Texas court appoints
with full authority, with some exceptions not relevant to this analysis, of an individual's
person or estate, or both. Tex. Prob. Code Ann. § 693. Whereas, as previously noted,
a Texas court appoints a guardian ad litem to represent only the best interests of
a person in legal proceedings. Vandewater, 907 S.W.2d at 493 n. 2; see also Tex. Prob. Code Ann. § 601(12) ("'Guardian ad litem' means a person appointed by a
court to represent the best interest of an incapacitated person in a guardianship
proceeding").
In conclusion, a guardian ad litem does not have the same level of priority that a
legal guardian has in the applicant preference list because a guardian ad litem's
authority is restricted to represent only the best interests of an individual in legal
proceedings and does not include full legal authority of an individual's person or
estate. Additionally, a state agency that a Texas court appoints as a temporary or
permanent managing conservator, such as the Department, has a higher priority than
a guardian ad litem in the applicant preference list because as a managing conservator,
the state agency has the power to obtain legal custody of a child, which is a power
the guardian ad litem does not have under Texas law. As a result, the Agency should
consider the guardian ad litem in the lowest priority in the applicant preference
list.
Very truly yours,
Tina M. W~
Regional Chief Counsel
Ruben M~
Assistant Regional Counsel