§ 163.3. Requirements.
(a) Need for guardian or trustee. The need for a guardian or a trustee will be determined as follows:
(1) General. A client will be considered in need of a guardian or trustee under the following circumstances:
(i) The client is mentally incapable of carrying out eligibility responsibilities. This will include the client who has been released from a Commonwealth school and hospital for the mentally retarded or a Commonwealth mental institution under community living arrangements, such as group homes and the like, as provided in § 163.4(a)(4) (relating to procedures).
(ii) It appears that the need for protective payments for an AFDC person (non-WIN) will continue or is likely to continue beyond 2 years as provided in § 291.24(g) (relating to procedures).
(2) Standards for determining need. The following standards will be applied in the determination of need:
(i) The County Office will decide, in determining initial or continued eligibility of a client, whether or not he is mentally capable of carrying out the responsibilities related to eligibility for assistance. If the County Office decides the client is mentally incapable of carrying out eligibility responsibilities, the County Office will request a guardian or trustee for the client if this appears to be the best plan for protecting the welfare of the client.
(ii) The decision as to whether a client is mentally able to carry out eligibility responsibilities will be made in the framework of the principles of public assistance administration. The agency will deal with a client as a responsible individual, that is, directly with him, whenever possible. The agency recognizes an individual’s right to self-direction, for example his right to make his own decisions as to how he will live, and how he will use the assistance payment to serve his best interests.
(iii) The fact that an individual does not readily understand what is required of him, that he is difficult to deal with or communicate with, or that he is physically incapable of carrying out by himself the responsibilities related to eligibility for assistance will not warrant requesting a guardian or trustee, if the individual is mentally capable of carrying out eligibility responsibilities. On the other hand, if the County Office finds the individual is mentally incapable of carrying out eligibility responsibilities, the fact that he is living in the circumstances that friends or relatives look out for his welfare will not be appropriate basis for a decision not to request a guardian or trustee.
(iv) If the client is physically unable to communicate his thoughts or decisions in relation to eligibility responsibilities, and if his physical incapacity is such that it is not possible to determine whether he is mentally capable of carrying out eligibility responsibilities, the client will be considered as if he is mentally incapable.
(v) In making the decision about the client, the County Office may use consultation from other fields such as medicine and psychology. However, the County Office will have the responsibility for the decision as to whether the client is mentally able to act on his own behalf in relation to public assistance requirements.
(b) Determination of correct representative. If a client has a guardian, of the estate or person or both, appointed by the court, that guardian shall be the representative of the client for any category of assistance. For the correct representative in other circumstances, reference should be made to paragraphs (1)—(4). If a person has a guardian or trustee who cannot or will not act for any reason, or if the ward seems able to act for himself, reference should be made to subsection (c).
(1) Natural guardian. A natural guardian shall comply with the following:
(i) If the adult client who is mentally incapable of carrying out his eligibility responsibilities has no court-appointed guardian, and has a parent who may qualify as natural guardian, the natural guardian will be the representative of the adult client or assistance purposes.
(ii) A natural guardian is a parent, natural or adoptive, of an adult child who:
(A) Because of his mental condition cannot act in his own behalf.
(B) Because of his mental condition was unable to act in his own behalf on the day he became 21 years old, and continuously since that date.
(C) Was in the custody of the parent on the date the child became 21 years old, and continuously since that date. The parent will be considered to have custody, in this context, regardless of other factors, if the child has not been legally removed from the care and direction of the parent. Marriage to a competent adult removes the child from the custody of the parent. A category of assistance may be paid to a natural guardian. Recognition of a natural guardian will be given by State Office.
(2) Court-appointed guardian (Federal Assistance Categories). If the client who is mentally incapable of carrying out his eligibility responsibilities has neither a court-appointed guardian nor a parent who may qualify as natural guardian, and if the client is otherwise eligible for a Federal category of assistance, a person or organization appointed by the court as guardian will be the representative of the client for assistance purposes. Court action will be taken through State Office if the prospective guardian is not paying the costs of court action.
(3) Court-authorized representative. Court authorized representatives will conform with the following:
(i) A court-authorized representative will be as acceptable to the Department as a court-appointed guardian to act in behalf of a person adjudged mentally incompetent.
(ii) A court-authorized representative will have the same legal authority as a court-appointed guardian to act in respect to public assistance matters for a person adjudged incompetent. Regulations related to a court-appointed guardian will also relate to a court-authorized representative.
(iii) The decision as to whether a guardian is appointed or a representative authorized rests with the court. The conditions under which a representative may be authorized for a person adjudged incompetent will be as follows:
(A) The net value of the entire real and personal property of the incompetent is $10,000 or less.
(B) A person or institution maintaining the incompetent is available to act as representative. Maintaining in this context means spending the income of the client for his benefit, and seeing to it that the client gets the care he needs.
(4) Trustee for GA and SBP. Trustees for GA and SBP will conform with the following:
(i) If the client who is mentally incapable of carrying out his eligibility responsibilities has no parent who may qualify as natural guardian, but is otherwise eligible for GA or SBP only, a trustee will be the representative of the client. A trustee will be appointed by State Office.
(ii) While court action on guardianship is in process, and if assistance cannot be paid to the client directly or for him as a member of a grant group as provided in § 163.4(b)(1)(i) and (ii), a trustee will be the representative of the client. Preferably, the prospective guardian will be the trustee. Only GA or SBP may be paid to a trustee.
(iii) In some instances clients who are mentally incapable of carrying out their eligibility responsibilities will be released from Commonwealth mental institutions or Commonwealth schools and hospitals for the mentally retarded under community living arrangements, such as group homes, and the like. If the client has no guardian, but is otherwise eligible for GA or SBP, a trustee will be appointed to represent the client. The Regional Commissioner for Mental Health/Mental Retardation will approve the appointment of a trustee who meets the conditions of subsection (d). Reference should also be made to § 163.4(a)(4) for procedures for requesting a trustee. Upon receipt of written notification, the County Assistance Office will authorize assistance. GA or SBP will be paid to the trustee, pending SSI determination.
(iv) While appointment of the trustee is in process, GA or SBP may be granted to the MH/MR client if the conditions of § 163.4(b)(1)(i) apply.
(c) Referral to CID. If the client is already receiving assistance, it will be continued for not more than 2 months following referral, to provide time for the County Institution District to make arrangements for the care of the recipient. If the County Office has decided that the client is mentally incapable of acting in his own behalf in relation to eligibility for assistance, it will refer him to the County Institution District under any of the following circumstances:
(1) This appears to be a better plan for protecting the welfare of the client than having a guardian or trustee appointed.
(2) There is not available a qualified person willing to act as guardian for the person otherwise eligible for AFDC, or as natural guardian or trustee for the person otherwise eligible for SBP or GA.
(d) Responsibilities of guardian or trustee. The County Office will offer to help the client, or his relative or friends, in planning the selection of a prospective guardian or trustee who appears qualified to meet the responsibilities. A trustee appointed by the Department must be willing to serve without compensation. It is desirable that a guardian also be willing to serve without compensation. However, if the court order appointing a guardian provides that he be paid a fee for his services, this will not affect the eligibility of the client, whether the guardian or the Department pays the cost of petitioning for the appointment. The guardian and trustee will have the same responsibilities, as follows:
(1) To assume the responsibilities of the client in establishing eligibility.
(2) To spend the assistance grant for the benefit of the client.
(3) To see to it that the client gets the care he needs.
(e) Selection of guardian or trustee. Selection of guardian or trustee will conform with the following:
(1) The guardian or trustee must be a responsible person with concern for the welfare of the client, a person who is willing and able to look after his charge. He must have a sound, workable plan for having the client get the care he needs. Since the guardian or trustee has control over the use of the assistance payment, he should be someone who has no financial interest of his own in the use of the assistance money. For this reason, if a client lives in a nursing home, boarding home or other institution, it is desirable that the prospective guardian or trustee be a person not associated with the institution. Only if a person cannot be found will the Department appoint as trustee a person associated with the institution, or petition the court to have a person appointed guardian.
(2) Before recommending a person to State Office to be a guardian or trustee, the County Office must assure itself that the person is informed about and appears qualified to meet the responsibilities involved. The County Office will also inform the guardian or trustee applying on behalf of his charge of his responsibilities in accepting the assistance payment; and that the social services of the agency are available to him in connection with his role and responsibilities as guardian or trustee. The guardian or trustee then must conform with the following:
(i) Furnish necessary information for determining initial and continued eligibility.
(ii) Sign appropriate application forms after his appointment. Reference should be made to § 257.24(a)(3) (relating to procedures) for acknowledgment of liability for reimbursement.
Source The provisions of this § 163.3 amended October 6, 1978, 8 Pa.B. 2731. Immediately preceding text appears at serial pages (29130) and (34029).
Cross References This section cited in 55 Pa. Code § 163.2 (relating to definitions); and 55 Pa. Code § 163.4 (relating to procedures).
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