TN 32 (02-92)
SI 01120.010 Factors That Make Property a Resource.
Property of any kind, including cash,cannot be a resource in a month unless,as of the first moment of that month, it meets all three criteria in B. below. However, it is not unusual for a nonresource to become a resource or vice versa; i.e., a key factor can materialize or go out of existence.
B. Policy - resources criteria
1. Ownership Interest
An individual must have some form of ownership interest in property in order for the property to be considered a resource. The fact that an individual has access to property, or has a legal right to use it, does not make it a resource if there is no ownership interest (SI 01110.100).
2. Legal Right to Access (Spend or Convert) Property
An individual must have a legal right to access property. Despite having an ownership interest, property cannot be a resource if the owner lacks the legal ability to access funds for spending or to convert noncash property into cash (SI 01110.100).
The fact that an owner does not have physical possession of property does not mean it is not his/her resource, provided the owner still has the legal ability to spend it or convert it to cash. However, see SI 01140.240 if a U.S. Savings Bond is involved.
3. Legal Ability to Use For Personal Support and Maintenance
Even with ownership interest and legal ability to access property, a legal restriction against the property's use for the owner's own support and maintenance means the property is not his/her resource (SI 01110.100).
C. Policy - access to resources
1. Access Via an Agent
We consider that an individual has free access to, and unrestricted use of, property even when he/she can take those actions only through an agent; e.g., a representative payee, guardian, etc. (SI 01120.020).
2. Access Only Via Litigation
When there is a legal bar to sale of property (e.g., if a co-owner legally blocks sale of jointly-owned property), we do not require an individual to undertake litigation in order to accomplish sale or access. The property is not a resource under such circumstances in a month if a legal bar exists as of the first moment of that month.
3. Access Via Petition - Conservatorship Accounts
If State law requires that funds in a conservatorship account be made available for the care and maintenance of an individual, we assume, absent evidence to the contrary, that funds in such an account are available for the individual's support and maintenance and are, therefore, that individual's resource. This is true despite the fact that the individual or his/her agent is required to petition the court to withdraw funds for the individual's support and maintenance. See SI 01140.215 for instructions concerning conservatorship accounts.
1. Lack of Ownership
Situation - In response to unstated income development, Mr. John Hart, an SSI recipient, explains that his brother, Ted, who lives in an adjacent State, allows him (John) access to his bank account in emergencies. John Hart says he withdrew funds to pay an overdue utility bill to avoid shutoff.
The CR confirms that the account is titled “Ted Hart by Ted Hart or John Hart.” John Hart states that he uses the funds solely for his own benefit and not as an agent for his brother.
Analysis - Even though John Hart has unrestricted access to the account and can use the funds at his own discretion, the funds are not his resources because he has no ownership interest in them. The title of the account clearly designates Ted Hart as sole owner. However, whatever funds John withdraws from Ted's account are John's income in the month of withdrawal.
Situation - A member of an Indian tribe states that he has several items, valued at several thousand dollars, that he would not sell because they are ceremonial in nature (clothing and beadwork). The CR questions him about the items and determines they were “entrusted” to him by the tribe for safekeeping.
Analysis - In order for an asset to be a resource for SSI, the individual must have an ownership interest in the asset. Since the individual in the above situation does not own the ceremonial items, they are not his resources.
2. Court Order Restricts Access
Situation - At the time of his divorce in 1989, Mark Thomas, an SSI recipient, was sole owner of the house in which his ex-wife and their two young sons are living. Under the terms of the divorce decree, Mr. Thomas must pay the taxes on the property and maintain it as a home for his ex-wife and the children until the younger boy reaches age 18 in 1997. The decree also specifies that he is free to sell the property only after the younger boy's eighteenth birthday.
Analysis - Although Mr. Thomas clearly owns the property, he is legally barred from converting it to cash to be used for his own support and maintenance until 1997. Therefore, it is not his resource until the month following the month of his younger son's eighteenth birthday.
3. Binding Agreement Restricts Access
Situation - As a gift from their parents, Tom Brown, an SSI recipient, and his ineligible brother received some shares of stock valued at $3,000. The stock certificates show that the brothers are joint tenants (SI 01110.510 C.2.), but the brothers have a legally binding agreement that one will not sell without consent of the other. The CR confirms that Tom's brother will not consent to sell.
Analysis - Normally, the gift would be valued under the income rules in the month of receipt and the resources rules thereafter. However, since Tom's brother will not consent to sale of the stock, Tom's share of the stock is not income in the month of receipt nor resources thereafter since it cannot be used for Tom's support and maintenance. If Tom's brother consents to sell, Tom's share would be a countable resource beginning with the month following the month that consent was given.
4. Lack of Possession Restricts Ability to Use - Savings Bonds
Situation - During a posteligibility review, the CR learns that George Jones, an adult SSI recipient, is co-owner along with his father of U.S. Savings Bonds with a face value of $3,500. The CR learns that George's father bought the bonds over a period of years with his own money and designated George as co-owner. The bonds are in the father's safe deposit box to which he will not give George access under any circumstances.
Analysis - The CR questions George's father and confirms that he will not give George the bonds under any circumstances. George's father states that, under the terms of his will, George can take possession of the bonds only after he (the father) dies. Generally, lack of physical possession of an otherwise liquid resource does not affect its status as a resource. However, physical possession of savings bonds is a legal requirement for cashing them. Although George is a legal owner, he cannot legally redeem the bonds for his own use. Therefore, they are not his resources.
5. Insurance Settlement Restricts Use
Situation - Bob Warfield, an SSI recipient, was injured in an automobile accident. A court awarded him damages of $10,000 to be used solely for medical expenses related to the accident.
Analysis - Although Mr. Warfield owns the funds and has direct access to them, he is not legally free to use them for his own support and maintenance. Therefore, the award funds are neither income nor resources.
6. State Law Restricts Use
Situation - Barbara Bradley, resident of a State institution, receives SSI payments of $30 per month through her representative payee. Ms. Bradley has $8,460 in a bank account which includes conserved SSA funds. The account title shows Ms. Bradley as owner with access to the funds through her representative payee. However, Ms. Bradley's payee is also an officer of the institution where Ms. Bradley lives and State law prohibits use of the funds for support and maintenance provided by a State institution under these circumstances unless the agent (payee) is also the individual's legal guardian.
Analysis - Since Ms. Bradley cannot use the funds for her own support and maintenance, either directly or through her representative payee, the funds are not her resources. The accumulated funds would become her resources and would be included in determining her resource eligibility beginning with the month following that in which:
Ms. Bradley's payee also becomes her legal guardian;
Ms. Bradley becomes her own payee or acquires a payee who is not an officer of the institution; or
Ms. Bradley moves out of the institution into the community.
The accumulated funds would not be counted as income in the month Ms. Bradley first becomes able to use the funds for her own support and maintenance, since Ms. Bradley does not “receive” new funds. Instead,she obtains the right to use an asset for her support and maintenance,making that asset a resource for SSI purposes.
7. No Access Without Litigation
Situation - Andrea Matthews, a disabled SSI recipient, has been separated from her ineligible spouse for 5 years. She and her spouse own a summer cottage in another State as tenants-by-the-entirety. Her spouse lives in the cottage and refuses to sell.
Analysis - If Ms. Matthews were to take action to dissolve the marriage,she would, as a tenant-in-common,have the right to market her interest in the property without her ex- spouses's consent. However, since we do not require litigation to obtain access, the property is not a resource unless her husband changes his mind about the sale. Therefore,the cottage is not Ms. Matthews' resource.
Even if Ms. Matthews could market her ownership interest in the cottage,the cottage would be excluded from countable resources if its sale would cause undue hardship for Mr. Matthews due to loss of housing (SI 01130.130).
8. Funds Held In A “Conservatorship” Account
See SI 01140.215.
Situation - Art Tyler, a disabled SSI recipient, has $5,000 in a savings account. Mr. Tyler's legal guardian informs the CR that he must petition the court whenever he wishes to withdraw funds for Mr. Tyler's care. The guardian adds that the court has never denied him permission to withdraw funds on Mr. Tyler's behalf.
Analysis - The CR refers to regional instructions on “conservatorship” accounts. The instructions confirm that State law requires that funds in such accounts be made available for the care and maintenance of the incapable owner, that the guardian must act in a way consistent with State law, and that the court is exercising its oversight responsibility appropriately.
The CR properly concludes that the funds are accessible by petition (as opposed to litigation) and so are Mr. Tyler's resources.