February 7, 1957. 

Eon. John H. Winters 

Executive Director, 

State Depar~tment of Public Welfare 

Aus tin, Texas. 

Opinion MO. ~~-18 

Re: Status of guardianships 

established to receive 

funds from governmental 

sources in view of certain provlrlonr of the 

Texan Probate Code, the 

Federal Regulation6 .governlng aarirtance programs, 

and Article III, Section 

518, of the Texas Coast%- 

tution, and related 

Dear 8iri questions, 

You have presented for our consideration questions 

concerning the nature and effeot 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 any way under the prermt 

law that a general guardlanahlp may be ertablished for the recipients of public aaaistance without a court order declaring 

such recipients incompetent or Insane. 

3. $n the event we are 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 and Welfare, 
Hon. John H. Winters, Page 2 (WW-18) 

you ask to be advised how you may remedy 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 new Code 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 due from a governmental 

source. Under these provisions of the law prior to the enact - 

ment of the Probate Code, Attorney General Opinions Ros. O-4949 

and o-6549 held that the guardianship was a general guardianship 

and extended to the whole of the ward’s eatate. 

The authority ,for creating 

& 

uardianships of this~ 

type has been carried forward in SectSion 

which provides that the County Court 

of the Probate Code, 

. . 0 may also 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 new provision, Section 228, 

which places a new limitation on this type guardianship. This 

section is as follows: 

“3 220. Powers and Duties of a Guardian of 

a Person to Receive Funds from a Governmental Agency.-- 

"A guardian appointed to receive funds from 

a governmental agency nhall have o 1 

+i 

the power to 

receive and receipt for such funds, old same, pay 

coats of the guardian in connection with collecting 

such funds or money, accounting for same to the 

court, and pay all or such portion of the remainder. 

to the ward or, if the ward la mentally incompetent, 

1168 such portion for his support and maintenance, 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 and returned. and 

order of the court with appropriate findings 

dlcating such person to be an habitual drunkar 3=- or 

a person of unsound mind.” (Emphasis added) 
. . . 

Hon. John Ii. Winters, Page 3 (m-18) 

The above quoted provision of the Probate Code strictly 

limits the powers of such a guardian to those necessary to receive 

and receipt for the governmental assistance funds. The guardian 

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 4 are not general guardianahipa. 

See also: McKinney v. Texas Bank and Trust Co., 295 S.W. 2d, 935. 

(Tex. Civ.App. 1956, no application for writ of error). 

You have asked for our opinion aa to whether this type 

guardianship will qualify for payment’under Item 5233.22 1 c of 

Part IV of the Federal “Handbook of Public Aaaiatance Adminiatratioa”, which ,reada as follows : 

” 

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

“c. The scope of the authority and reaponaibillty 

of the guardians of public a~aaiatance recipienta la 

the same as 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 ass is tance payments. * 

A guardianship under Section 228 la directly in the 

teeth’of this regulation, in that: (1)’ the authority and reaponaibllity of the guardian by the express limitation of Section 228 

is not the same as 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 management of 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 paJlaenta under 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 amount of such aasiatance out of State funds to each person assisted ahal; never exceed the amount ao expended out of Federal funds. *.. It is our 

opinion that this limitation on the amounts which may be paid by 

the state applies generally to all the named assistance programs. 
Hon. John H. Winters, Page 4 (~‘~-18) 

Therefore, unless the Federal government makes assistance payments to a ward, the state would not be authorized to make payments to that ward. 

In answer to your first question, if the Federal government follows our construction of its regulations and our statutes, 

it will not make payments to guardianships of this type. Then 

the state would not be authorfeed to make assistance payments to 

the ward because of the restrictions of Section 51a, Article III 

of the State Constitution. However, so long as the Federal 

government continues to make payments 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 whom a 

guardian is to be appointed la either a minor, a person of unsound, 

mind, an habitual drunkard, or a person for whom it is necessary 

to have a guardian appointed to receive funds due such persona 

from any governmental source. We have held the latter type 

guardianship limited; therefore, unless the ward is a minor, 

there Is no method by which a general guardianship may be created 

except through a finding that the ward is either a person of unsound mind or an habitual drunkard. Your second question Is 

answered in the negative. 

In answer to your third question, the best way to remedy 

the situation, both as to guardianships already 'created and guardianships 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 and not 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 up hereafter should be upon ths basis of a flnding of minority or incompetency by the court, and not 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 no violations by your department. 
Hon. John H. Winters, Page ~5 (WW-18) 

SUMWARY 

A guardianship created under Section 4 of 

the Texas Probate Code on the basis of a neceaaity therefor to receive governmental assistance 

on behalf of the ward is not a general guardianship, and will 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 no more than the amount 

paid by the Federal government. If the Federal 

government makes payments, the state Is authorized 

to match them; If the Federal government makes 

no payments, the state would not be authorized to 

make payments. 

There la no provision under the Texas Probate 

Code for a general guardianship except the perron 

be a minor, or an incompetent person. 

Unless the Legislature changes the provialona 

of Section 228, guardlanahlpa must be baaed upon 

one of the above findings In order to qualify for 

Federal aaaiatance. 

Very truly yours, 

WILL WIISON 

Assistant 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler 

Chairman