Guardianship Questions to and Responses from the Social Security Administration
During the committee’s deliberations several questions came up about guardianships, court-appointed guardianships, guardianship fees and representative payees. This appendix presents the committee’s formal questions to the Social Security Administration (SSA) and the agency’s written responses.
When a court issues a guardianship and states that a guardian may bill for fees, may these fees be deducted from Social Security benefits?
Yes, the fees may be deducted from Social Security benefits.
In a court-appointed guardian situation, is there any circumstance when fees are allowed or not allowed?
If the court approves a fee, SSA cannot deny its payment, and the use of Social Security benefits to pay court authorized guardianship fees is generally considered a proper use of the beneficiary’s funds. However, if Social Security learns that a legal guardian is charging a fee that leaves the beneficiary with unmet needs, our policy provides that the case should be referred to the appropriate regional chief counsel (RCC) for review. If the RCC believes the charges are excessive, the circumstances should be brought to the court’s attention. If representations to the court are unsuccessful, SSA will consider whether a change of payee is appropriate.
When a guardian calculates his/her fees based on a percentage of the total amount of income, may Social Security funds be included in the amount even if no Social Security funds are used to pay these fees?
Yes. Social Security does not instruct or guide the guardian payee in how to compute fees. As noted, SSA generally allows representative payees who are legal guardians to deduct court authorized guardianship fees and those fees may be deducted from Social Security benefits.
May a guardian commingle Social Security benefits with other income or assets derived from sources that may include veteran’s benefits, private pensions, or other routine deposits?
SSA funds must be held in an account which is titled in such a manner as to be clear that the funds are owned by the beneficiary, not the payee. SSA has no restriction regarding holding Social Security funds along with other funds in the same account. Of course, the payee will have to account at least annually to SSA on the use of Social Security funds so, regardless of how the funds are held, a clear record must be kept regarding the use of Social Security funds.
May a guardian bill for legal fees, tax preparation fees or other financial/legal processes where sources for these fees may be from Social Security funds?
For court-approved fees, Social Security does not guide a guardian payee in how to compute a fee request that is submitted to the court.
May State Guardianship Courts trump Social Security policy with regard to fees, when SSA policy states that only certain organizations may be paid a fee for service, and then it is capped on a monthly basis? State-appointed guardians are not fee-for-service organizations as defined by SSA.
The guardianship fees allowed by State guardianship courts are not limited by Social Security policy. This is true because legal guardians are responsible for a wider range of duties and responsibilities than a Social Security representative payee who is not a legal guardian. However, a guardianship organization may also be approved by SSA to be a fee-for-service payee. If they provide evidence that they are performing different duties as a representative payee versus guardianship duties, they could collect a guardianship fee and a fee-for-service amount, but payment for the services may not overlap.
We welcome any recommendations you may have regarding the dual role of legal guardian and representative payee.