## R-279

THEATTORNEWGENERAL

OFTEXAS

AU&-IN. **TEXAS**

April 

## 9,1947

Hohi John Ii.

Winters Executive Dlrector Department df ?ubllcWelfere~ Austin, Texas OpinionBoo V-132



### Re: Conslderatiou of e bequeat In FelOtlon to 8 recipient’s eligibllity for old age Deer ~Sir: assistance.

We have 

### yourrequest 

### foran opinion upon the above captioned subjectmatter, the pertinent parts being as follows:

“Our recipient,whom we shall refer to as Ur. F, made an appllostlon for old age assistance in June, ,1942,and has received assiat8nae continuously in varying amounts since September, 1942. Hr. F’s present ,householdconsists of hlmself, **8** son about twenty-threegeers of 880, 

### and

**8** minor daughter about sixteen

### yeers of The daughter Is in school. Mr. F %‘born on January 9, 1877,and due to a chronic dlsebilltgend his age, he is unable to perform eny work Prom whioh he maightreCeive remuneration. He hiustwo or three brotherswho have assistedhim 

### from time to time 

### overe period of

### years. One brother at the present time is contributing $7-50 a week towardhis and his deughtorts support in addition to paying some of the utilities. Hr. F Is at the present time receiving $37 a month old age esslstance. He is living in his own home free of all encumbrancesexcept

### perhapsdelinquent taxes.
“in the spring of 1946 one ofM.P.F’s brothers died. The brotherIswill was probated In 

### June, 1946, He left one-third ofRon, John H, Winters - Pege 2,V-132

his estate to his su~vlvfng spouse, one-third to his daughter,and the other bne-third to sever81persons, among whom is our recipfent of old age 8sslstance,Hr. F. The terms of the ~3.11Fn relation to our recfpient 8Fe as follows:
"gI leave to my brother, S F a sum not to exceed Fif'ty (-6) Dollars per month, to be payable to him by my said executor
so long as he shall live; it is specfficailyprovfded that ssfd sum Shell be Ln such amount **8s** not to jeopardize 8ny pension or otherpayment he may receive from any governmental source. Once ffxed, this amount shall not be increasedwhether or not such pension
or otherpayment from 8ny governmental
source shall continue.'

"The executor of the will is 

### a nephew of the deeedent end of our recipient,Mr.-

F. He stated that he prepared the will, and he knew that the decedent intended that the $50 shouldnot replace the reeipi.entPs grant but should supplement it, The exeeutop further explafned that ff the money pa1d to the re@efpi.ent out of the estate affected his old age asslstance grant even 8s much as $1 that he would receive nothingwhatever f'Pom the estate, The recipient is stfll en the old age assfstence polls, end notha ing has been pafd to him out of the estate **8s** the executor fs awaitfng a deflnfte answep from the departmentas to what effect, ff any, the payment of the $50 or any portion thereofwill have upon his old age assfstance grant."

We shell answer your questions in the order of their presentation,

1, **AS you**  point outa the Soeial SeauritJ Act requires, **8s** a oonditfon to CoopePetfOnwith theHon. John H. Winters - Page 3,V-132

Stete as to old ego assistance, the State plan to "provide that the State agency shell, in determining need, take into considerationany other income 8nd'resources of an individualclaiming old ego assistance; * *.*n

(H.B. 611,

Section 21 of the PublloWelfere Act of 191 47th Leg., R.S., as amended) Is 8s followss

"Sec. 21. The amount of essistance which shall be given under the provisions of this Act to any individual,asoldego assfstanoe shellbe determinedby the S%8te Depertment through its district or county in uhich the needy eged person resides-withdue consideration to-the income and other resources of such aged person and in aecordencewith ,the rules end -ulatFons of the State Department * l * The amount of assistance given shall provLde such aged personwith a reasonable subsistence compatiblewith decency ati, health, withfn the limitstionsand provisions of the~constltutionof Texas 88 are now provided, or mey hereafterbe provided." (Underscoringadded for emphasis.)

Section 24 of the Act provides in part 88 follows:

‘Allassistance granted under the provisions of this AC% to any needy aged person, needyblind person crwith respect to any dependent chi1.dshall be reconsfdered as frequently 89 may be requiredby the rules of the State DepartmentO After such reconsiderationas the State Department may deem necessary or may raqufre, the 8mount of assistancemay be @hanged, or the assistance may be entirelywithdrawn ff the State Department finds that the recipFentPsofrcumstances h8ve eltered sufficiently to W8rrant such action" The State Departmentmay at any time oancel end revokeassfstance or it may suspendassfstance for such period as it mey deem proper, upon the grounds of inelfgibllity of the recipient'under the provisions of this Act. * * * If at eny time during the continuance of public assistance the recipient thereofbecomes possessed ofHon. John H. Winters - Page 4,V-132

income or’resources in excess of the 8- moutit previously reportedby him, it shall be his duty to notify the State Department ‘;.~ of such additional lnaome or resources.” Again, Section 29 of the Act provides in part as follows:

“Oldage asslstanae,aid to the blind, or aid to dependent children as provided for under the provisions of this Act shall notbe transferable or assignable,at law
or in equity,and none of the money paid
or payable under the provisions of this Act shall be subject to execution, levy, attachment, garnishment, or other legal process, dr to the operation of atiyinsolvency law; the provision of this Act providing for old age assistance,aid to the blind, and aid to dependent children shall not be construedas a vested right In= ~recipientof such assistance; l l mrscoringadded for emphasis.]

These Federal and State statutes themselves compel an answer to iourquestion Ro. 1 to the effect that thebequest of 50.00 per month cannot ‘bemade to your recipientwithout reducing the amount he may receive throughyour department, orwithout making him inei$glble

for payments.
2. Your’.very

helpful commentsappended to your requestare as follows:

“Pursuant to the provisions of the Federal and State laws the department has formulatedpoliciesard procedures
as set out in the departmentalmanual providing for the considerationto be ,givenresourcesavailable to recipients. Since the maximum amount which may be paid to any individual out of the State and Federal money is $45 a month and since the total amount of State funds available for administering the old age aasistanca programand paylug the assistance grants Is Thirty One Million Dollars ($31,000,000.00)a year, and slnue there
are at the present time approximatelyHon. John B. Winter3 - Page 

## 5,v-132

191,824

recipients receiving old age assistance in the State of Texas the necessity for placingmaximums on certain al- "L lowable items in the recipient'sbudget is obvious. ~Because of the limitation of funds, a standardamount is included in the budgets of all person3 under similar circumstenc~es

for certain needs which are common to all recipients such as food, clothing, household supplies,and incldentala.
"Also,under certainpolicies of the department a recipient is allowed in his budget the common household expenses for himself and his normal dependentawhich,in this instancewould be Mr. F’s sixteen year old daughter,who is in school. In otherwords, the taxer, the utilities,and other expenseswhich he would have to pay whether the dependentwas in the home or not would be included inhis asslstanae grant, and any incomeavailable could be used towardmeeting her needs before the departmentwould consider the income or resourcesas being available for meeting his needs. In determining the need3 of the dependent,however, **W8**are governed by the same limitationsas we are for the individual recipient.

"When the question first arose the department advised the executor that any available income or resource could not be disregarded in determining ellg1b1lityand 'that the department could not make any kind of an agreement or oontract or in auy way obligate the department to continueassistance in any given amount since the law requires u3 to consider ueeda and resources ou an individualbasis and that the amount will vary from time to time depending upon the circumstances of the iadividual.

'350 are eager to assist thia aged recipient If he meets eligibility require-- ments. 'Both the State end Federal lawspPO* 'videthat before a resource may be considered that it must be available; therefore, inHon. John H. Winters - Page 6, V-132

determining the amount bf ,theassistance grant, we oannot conalder this resourae until It has aotuallybeen made avail-. \. able to the reoiplent. The recipient feels that he is in need of oonsiderably
more money than labeing paid urder the sssistanoe payment. With the limited amount of 8oney availeble the department cannot meet all of the needs whioh a reclpient wy feel thathe has. In determining eligibilityand the amount of grant the departmenthes found that in accordancewith the policies Hr. F. is tentativelyellgfble for a grant of $37 a month. In view of the fact that the maximum amount thatmy be paid to any lnd~vidual is $45 a month, it is obvious that if UP, F should reoeive the bequest of $50 a month, this would render him lnellgible for assistanceand that any amount that he should receive from the estatewould affect the amount of the assistanae grant. Under the policies of the department itwould be necessary to deduct whatever amount he receives from the needs as determinedby the department.~ The executor Is interpreting this provlsion of the will as making the bequest conditioned upon the fact that the department would not alter or change the amount of theassistance gmnt by meson of the payment of the bequest."
Upon the statements plade by you, it is obvious that your department, in following the statutes and formula ofyour promulgatedplan, aside from any consideration of thebequest, oould not pay the Pecipientmore than a maximum of $37.00 a month, and that any amount received under the will may reducehis pension.
Ihis leads to a considerstion of **your** added questionwhether or not the Department of Pub110Welfare may make any definite commitment to the exeoutor of the will with respect to allowance or consideration of suchmoneys bequeethed. Clearly, under the law, you cannot make a binding commitment on thlamattar.Hon. 

### JohnIi. Winters -Page

## 7,V-132

Our conclusion in the whole matter is that your department should proceed in the matter of an alhancemto this particuiar recipient as though no bequest had ever been made, and if at any time it called to your attention that payments thereunder been made to the recipientyou will take the same account as requiredby law.

SumPRY
Payments received under a will by a recipient of old age assistanae are required .to be taken into account by the Board of PublicWelfare 

### indetermining

### whethersuch payments make the recipient ineligibleor merely operate to reduce the amount he may receive from the department.
Yours very truly such IS have into



### ATTORNEYGXWERAL 

### OF TEXAS



## BY

OS/lb

AL OF TEXAS