February 7, 1957.

Eon. JohnH. Winters Executive Director, State Depar~tmentof Public Welfare Austin, Texas. Opinion MO.~~-18
Re: Status of guardianships established to receive funds from governmental sources in view of certain provlrlonr of the TexanProbate Code, the Federal Regulation6 .governlng aarirtance programs, andArticle III, Section 518, of the Texas Coast%- tution, andrelated Dear 8iri questions,

Youhave presented for our consideration questions concerning the nature andeffeot of certain guardianship proceedings net up on the barle of a necessity to appoint a guardian to receive fund8 

### from a governmental source 

### or agency. Your queationr are ar follow:

1. Whether under the present Texas Probate Code, the Federal rules of assistance disbursement, and the Texas Constitution, your department ir authorized to continue assistance payments to guardians appointed on the grounds that it ia neceasary that a guardian be appointed to receive such payments.

2. Whether, **if** in our opinion such a guardianship is a limited guardianship, thera is anywayunder the 

### prermt law that a general guardlanahlp maybe ertablished for the recipients of public aaaistance without a court order declaring such recipients incompetent **or** Insane.

3. $n the event weare of the opinion that Section 228 of the Texas Probate Code is in conflict with the rules and regulations of the Department of Health, Education andWelfare,Hon. JohnH. Winters, Page 2 (WW-18)

you ask to be advised howyou mayremedy the situation not only as to the cases arising in the future, but also as to those guardianships which have been established for receiving such funds since the establishment of the newCode on January 1,1956.

Prior to the date of the Probate Code, the laws of Texas provided for a guardianship without the necessity of a formal finding of minority, Incompetency, or habitual drunkenness where it was necessary to receive funds duefrom a governmental source. Under these provisions of the law prior to the enact- mentof the Probate Code, Attorney General Opinions Ros. O-4949 and o-6549 held that the guardianship wasageneral guardianship and extended to the whole of the ward’s eatate.

Theauthority ,for creating & uardianships of this~ type has been carried forward in SectSion which provides that the County Court of the Probate Code,

..0mayalso appolnt guardians for other persons where it is necessary that a guardlan be appointed to receive funds from any-governmental source or agency~.” As far as Section 4 is concerned, the guardianship is still general, but the Probate Code Includes a newprovision, Section 228, which places a newlimitation on this type guardianship. This section is as follows:

“3 220. Powers andDuties of a Guardian of aPerson to Receive Funds from a Governmental Agency.--

"Aguardian appointed to receive funds from a governmental agency nhall have o 1 +i the power to receive andreceipt for such funds, old same, pay coats of the guardian in connection with collecting such funds or money, accounting for sameto the court, and payall or such portion of the remainder. to the ward or, if the ward la mentally incompetent, 1168such portion for his support andmaintenance, as the court by appropriate order or orders from time to time shall authorize. Such guardian shall not be considered as a guardian of the estate of such been expressly appointed d :i procedure prescribed for ?:at purpose in this code,.to-wit: written application with appropriate allegations, general notice and Deraonal citation dulr served andreturned. and order of the court with appropriate findings 3=- dlcating such person to be anhabitual drunkar or a person of unsound mind.” (Emphasis added).. .

Hon. JohnIi. Winters, Page 3 (m-18)

Theabove quoted provision of the Probate Code strictly limits the powers of such a guardian to those necessary to receive andreceipt for the governmental assistance funds. Theguardian has powers over a portion of the estate only, and not over the parson of the ward. Attorney General’s Opinions Nos. O-4949 and O-6549 were issued prior to the enactment of this limitation. **We** conclude thet such guardianahipa created after January 1, 1956, under this provision of Section 4are not general guardianahipa. See also: McKinneyv. Texas BankandTrust Co., 295 S.W. 2d, 935. (Tex.Civ.App. 1956, no application for writ of error).

Youhave asked for our opinion aa to whether this type guardianship will qualify for payment’under Item 5233.22 1 c of Part IVof the Federal “Handbook of Public Aaaiatance Adminiatratioa”
, which ,reada as follows :

”

... participation is also available for payments madeto the legal guardian of an eligible lndividual, provided that:

“c. Thescope of the authority andreaponaibillty of the guardians of public a~aaiatance recipienta la the sameas that of guardiana appointed for other persons, e.g

., the guardianla-.raaponalbility extends to the entire estate (incomb’anb rebourcea) of his ward and la not limited to the~~management of the ward’s public assistance payments.*
Aguardianship under Section 228 la directly in the teeth’of this regulation, in that: (1)’ the authority andreaponaibllity of the guardian by the express limitation of Section 228 is not the sameas that of other guardians, and‘(2) the guardian’s reaponaibility does not extend ‘to‘the-@dire estate because the guardian’s power la strieCly~limit~ed by Section 228 to the managementof the ward’8 public aaalatance payments. Therefore it is our opinion that guardianships created on thia basis after January 1, 1956 cannot qualify to receive Federal Asaistante paJlaentaunder the quoted provisions of the governing Federal regulations.

Section 51a of Article III of the Texas Constitution provides for the papent of asaiatapce to certain individuals and includes the further provision

... that the amountof such aasiatance out of State funds to each person assisted ahal; never exceed the amountao expended out of Federal funds. *.. It is our opinion that this limitation on the amountswhich maybe paid by the state applies generally to all the namedassistance programs.Hon. JohnH.Winters, Page 4 (~‘~-18)

Therefore, unless the Federal government makesassistance payments to award, the state would not be authorized to makepayments to that ward.

In answer to your first question, if the Federal governmentfollows our construction of its regulations andour statutes, it will not makepayments to guardianships of this type. Then the state would not be authorfeed to makeassistance payments to the wardbecause of the restrictions of Section 51a, Article III of the State Constitution. However, so long as the Federal government continues to makepayments to such guardianships, there would be no inhibition against the state matching such payments.

Section 114 **of** the Probate Code also governs the answer to your second question, and provides that, "Before appointing a guardian the court must find: (a) That the person for whoma guardian is to be appointed la either a minor, a person of unsound, mind, anhabitual drunkard, or a person for whomit is necessary to have a guardian appointed to receive funds due such persona from any governmental source. Wehave held the latter type guardianship limited; therefore, unless the ward is a minor, there Is nomethodbywhich a general guardianship maybe created except through a finding that the ward is either a person of unsound mind or anhabitual drunkard. Your second question Is answered in the negative.

In answer to your third question, the best wayto remedy the situation, both as to guardianships already 'created andguardianships to be created in the future, would be for the Legislature to repeal or modify Section 228 of the Probate Code so as to make such guardianahipa general andnot special. In the event the Legislature does not change the law, it will be necessary, in order for existing guardianships to rmeive assistance paymenta.in the future, that all such guardianships be peviaed and reformed, with a proper finding by the court that the ward la either a minor,
or an incompetent person. The guardianship would then be general and could qualify under the applicable Federal regulations. All guardianships set uphereafter should be upon ths basis of a flnding of minority or incompetency by the court, andnot upon the basis of a necessity to receive governmental funds. However, if the Federal government has been making payments all during the year 1956 and since the adoption of the Probate Code, then there have been noviolations by your department.Hon. JohnH.Winters, Page ~5 (WW-18)

SUMWARY
Aguardianship created under Section 4of the Texas Probate Code on the basis of a neceaaity therefor to receive governmental assistance onbehalf of the ward is not a general guardianship, andwill not ~uallfy under Part IV, Item 5233.22 1 c of the Handbook of Public Assistance Administration", under which paymenta of Federal assistance are made. Since the payment of Federal aid is thereby restricted, Art. III, Sec. 5la of the Texas Constitution will operate to limit state assistance to nomore than the amount paid by the Federal government. If the Federal government makespayments, the state Is authorized to match them; If the Federal government makes no payments, the state would not be authorized to makepayments. There la no provision under the Texas Probate Codefor a general guardianship except the perron be a minor, **or** an incompetent person. Unless the Legislature changes the provialona of Section 228, guardlanahlpa mustbe baaed upon one of the above findings In **order** to qualify for Federal aaaiatance. Very truly yours, WILLWIISON

Assistant
APPROVED:
OPINIONCOMMITTEE
H. GradyChandler Chairman