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 cer-
tain provlrlonr of the
Texan Probate Code, the
Federal Regulation6 .gov-
ernlng 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 proceed-
ings net up on the barle of a necessity to appoint a guardian to
receive fund8 from a governmental source or agency. Your quea-
tionr are ar follow:
1. Whether under the present Texas Probate Code,
the Federal rules of assistance disbursement, and the Texas Con-
stitution, your department ir authorized to continue assistance
payments to guardians appointed on the grounds that it ia neceas-
ary 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 re-
cipients 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 & of the Probate Code,
which provides that the County Court . . 0 may also appolnt guard-
ians 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 gener-
al, 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 the power to
receive and receipt for such funds, +i 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 Adminiatra-
tioa”, which ,reada as follows :
” . . . participation is also available for pay-
ments made to the legal guardian of an eligible ln-
dividual, 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~~managementof 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 reapona-
ibllity of the guardian by the express limitation of Section 228
is not the same as that of other guardians, and ‘(2) the guard-
ian’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. There-
fore it is our opinion that guardianships created on thia basis
after January 1, 1956 cannot qualify to receive Federal Asaist-
ante paJlaenta under the quoted provisions of the governing
Federal regulations.
Section 51a of Article III of the Texas Constitution pro-
vides for the papent of asaiatapce to certain individuals and
includes the further provision . . . that the amount of such aasia-
tance out of State funds to each person assisted ahal; never ex-
ceed 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 pay-
ments to a ward, the state would not be authorized to make pay-
ments to that ward.
In answer to your first question, if the Federal govern-
ment 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 un-
sound 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 guard-
ianships 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 flnd-
ing 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 neceaa-
ity therefor to receive governmental assistance
on behalf of the ward is not a general guardian-
ship, 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:
OPINIONCOMMITTEE
H. Grady Chandler
Chairman