Revision 09-4; Effective December 1, 2009
§358.327. Transactions Involving Agents.
(a) An action by a fiduciary agent is the same as an action by the person for whom the fiduciary agent acts.
(1) An asset held by a fiduciary agent for another person is not a countable asset to the fiduciary agent.
(2) An asset held by a fiduciary agent for another person is a countable asset to the person for whom the fiduciary agent acts, unless otherwise excludable.
(b) A person's resources are available if the resources are being managed by a legal guardian, representative payee, power of attorney, or fiduciary agent. If, however, a court denies a guardian or fiduciary agent access to the person's resources, the resources are not considered available to the person.
(1) If a person's guardianship papers do not show that a legal guardian is prohibited access, and if the court has not subsequently ruled a prohibition, the resources are considered available.
(2) A guardian's routine need to petition the court for permission to dispose of a person's resources is not a prohibition.
(3) When the court rules on a petition to dispose of a person's resources, resources are considered available only to the extent to which the court has made the resources available for the person's benefit.
D-4120 Transactions Involving Agents
Revision 15-4; Effective December 1, 2015
Agents act on the person's behalf to sign applications and redetermination packets. When a guardianship exists, only that person can act on the person's behalf to sign applications and redetermination forms.
Guardian of the estate. Under Section 1151.101 and 1151.151 of the Texas Estates Code, it is the duty of the guardian of the estate to take care of and manage the estate as a prudent person would manage the person's own property. The guardian of the estate collects all debts, rentals or claims due to the ward, enforces all obligations in favor of the ward, and brings and defends suits by or against the ward. Only the guardian of the estate can deal with resources.
Guardian of the person. Under Section 1151.051 of the Texas Estates Code, the guardian of the person has the:
- right to have physical possession of the ward;
- right to establish the ward's legal domicile;
- duty of care, control and protection of the ward;
- duty to provide the ward with clothing, food, medical care and shelter; and
- power to consent to medical, psychiatric and surgical treatment other than the in-patient psychiatric commitment of the ward.
For HHSC purposes, the guardian of the person can sign documents, represent the person at hearings, and deal with small amounts of money. The guardian of the person is like other authorized representatives in that they have the authority to protect the interests of the ward.
Under Section 1151.004 of the Texas Estates Code, a court may appoint the same person to be both guardian of the estate and guardian of the person. If there are two guardians, one of the estate and one of the person, then the eligibility specialist must examine the court orders establishing the guardianships to decide which is the most appropriate to represent the person with HHSC.
A person's resources are available to him if they are being managed by a legal guardian, representative payee, power of attorney or fiduciary agent. If, however, a court denies a guardian or agent access to the resources, HHSC does not consider the resources available to the person.
If a person's guardianship papers do not show that the legal guardian is prohibited access, and if a court has not subsequently ruled a prohibition, the person's resources are considered available. A guardian's routine need to petition the court for permission to dispose of a person's resources is not a prohibition. When the court rules on a petition to dispose of a person's resources, resources are considered available only to the extent to which the court has made them available for the person's benefit.
If a legal guardian exists, obtain a copy of the guardianship or power of attorney document. Identify a fiduciary relationship by the way in which a resource is styled. A bank account established in two names connected by "for" or "by" indicates a fiduciary relationship. Another indication is an account established in two names with the designation of "representative payee" next to one of the names, or an account with the designation "special."
Revision 15-4; Effective December 1, 2015
- A person has resources valued at $1,300, which are being managed by his son. The son claims that as the power-of-attorney, he is the only one who has access to the funds.
Because a power-of-attorney is given voluntarily, and management of the resources is with the person's consent and for his benefit, this person's resources are available to him.
- Another person's parents used their own funds to purchase a certificate of deposit (CD) for him. The CD was issued as "Person's Name, by Parents' Names, Joint Representative Payees."
The CD is an available resource to this person, because the designation indicates that the parents are acting in a fiduciary capacity in controlling funds belonging to him, regardless of the fact that the parents paid the purchase price.
- A third person recently left the hospital and entered a long-term care facility. She is in a coma, and there are no known living relatives or friends. After the person had a stroke, her landlady looked through the person's papers and found a $600 term life insurance policy and a checkbook showing a balance of $3,840.65. The eligibility specialist verified the bank balance.
Although court action to appoint a guardian would be necessary to allow disposal of the person's excess funds, the resources are available to her. Until a court judges the person to be incompetent and unable to handle her affairs, the eligibility specialist cannot assume that the court will prohibit an appointed guardian from disposing of any of the funds in the checking account. This person is ineligible because of excess resources.