                           November 25, 1958


Honorable John H. Winters           Opinion No. WW-524
Commissioner
State Department of Public          Re: Whether the Department of
   Welfare                              Public Welfare may make
Austin 14, Texas                        payments  to a general
                                        guardian of the person of
                                        the ward, or to the natur-
                                        al guardian of the ward;
Dear Mr. Winters:                       and related questions.

         In your letter of September lgth, you requested our
opinion on the following questions:
               17
                . . . Could the Department legally make
               the payment to the guardian of the person
               if the Letters of Guardianship show either
               of the following conditions:

                    "1 .   That 'Richard Roe was by
                           said Court duly appointed
                           guardian of the person of
                           John Doe, a person of un-
                           sound mind'; or

                    "2 .   That 'Richard Roe wa8 by
                           said Court duls appointed
                           guardian of the person of
                           John Doe'."

         By supplement dated September 29th, you,asked our opln-
ion on the following questions in the event it was determined
that a guardian of the person only may receive and expend pub-
lic assistance funds. Such questions are:

                "1. In the Aid to the Permanently and
         Totally Disabled Program there are many minor
         applicants who are permanently and totally dis-
         abled either by reason of a physical disability
         or a mental impairment.  Can the natural parents
         of these minor applicants file application, re-
         ceive assistance funds, and expend the assistance
         funds on behalf of these minor children as their
         natural guardian without any kind of a court pro-
         ceeding?
                                                              ”
                                                                  .




Ronorable John H. Winters, page 2   (w-524)



               "2 . If your answer to the foregoing ques-
         tion is in the affiraiitive, then ~a,::
                                               this be ex-
         tended so that the natural parent of the mentally
         retarded or incapacitated adult child can act as
         the natural guardian to receive %ir-f;b expend the
         funds without any kind of a legal appointment or
         court proceeding?'!

         H. R. 13549, 85th Con ress, Second Session (Public Law
35-840) amended Section 511 (a7 , Title XI of the Social Security
Act by adding a new Section 1111.

                'Sec. 1111. For purposes of titles!~I,~~~IV,
         X, and XIV, payments on behalf of an individual,
         made to another person who has been judicially
         appointed, under the law of the State in which
         such individual resides, as legal representative
         of such individual for the purpose of receiving
         and managing such payments (whether or not he is
         such individual's legal representative for other
         purposes), shall be regarded as money payments
         to such individual."

                "(b) The amendment made by subsection (a)
         shall be applicable in the case of paymentsto
         legal representatives by any State made after
         June 30, 1958; and to such payments by any
         State made after December 31, 1955, and prior
         to July 1, 1958, if certifications for payment
         to such State have been made by the Secretary
         of Health, Education, and Welfare with respect
         thereto, or such State has presented to the
         Secretary a claim (and such other data as the
         Secretary may require) with respect thereto,
         prior to July 1, 1959."

         This amendment authorized a judicially appointed legal
representative of an individual receiving Old-Age Assistance,
Aid to the Blind, Aid to Dependent Children, or Aid to the Per-
manently and Totally Disabled, to receive and expend assistance
payments on behalf of an individual, even though such legal re-
presentative is not that individual's legal representative for
other purposes.

         You state that you are satisfied that the Department
may legally make assistance grants on behalf of the individual
if the guardianship is:
Honorable John H. Winters, page 3.   (w-524)



         1.   A general guardianship of the person and estate;

         2.   A general guardianship of the estate; or

         3.   A guardian for a person for whom it is necessary
              to have a guardian appointed to receive funds
              fro,m a governmental agency.

         As we interpret your requests, you are concerned with
your authority in relation to a guardian of the person of the
ward and a natural guardian of the ward. This opinion will be
so limited.

         The Probate Code devolves a duty upon the guardian of
the person of a ward to provide for the ward's care, mainten-
ance and education.

         Section 229 of the Probate Code sets out these duties
and obligations as follows:

                "The guardian of the person is entitled
         to the charge and control of the person of the
         ward, and the care of his support and education,
         and his duties shall correspond with his rights.
         It is the duty of the guardian of the person of
         a minor to take care of the person of such minor,
         to treat him humanely, and to see that he is pro-
         perly educated; and, if necessary for his support,
         to see that he learns a trade or adopts a useful
         profession."

         Section 236 of the Probate Code reads in part as fol-
lows:

               "The court may direct the guardian of
         the person to- expend, for the education and
         maintenance of his ward, a sum in excess of the
         income of the ward's estate; otherwise, the
         guardian shall not be allowed, for the educa-
         tion and maintenance of the ward, ,more than the
         net income of the estate. . . .'

         In our opinion, these sections, when read in connec-
tion with Sections 399 and 405, Probate Code, requiring an ac-
counting of the financial affairs of the ward to be filed by
the guardian of the person of the ward, clearly establish that
such guardians are authorized and obligated to expend for the
care, support and maintenance, sufficient amounts from the
Honorable John H. Winters, page 4   (w-524)




ward's estate to accomplish the guardian's stat~utorg duties and
obligations, regardless of whether the funds are from public as-
sistance payment or from some other source. Insofar as the De-
partment of Public Welfare is concerned, a guardian of the per-
son of a ward is entitled to receive and expend public assistance
payments if he is authorized by a proper court order to so do.
It must be pointed out that such payments are not, in legal con-
templation, income to the ward, but constitute corpus of the
ward's estate.   See 21 Tex. Jur. 144, Secti.on 158, and auth-
orities there cited. Therefore, in our opinion, your Depart-
ment should require the copy of the letters of ,guardianship
evidencing the appointment of the guardian of the person of the
ward to be accompanied by an order of the appointing court auth-
orizing such guardian to receive and expend such funds. When a
guardian of the person of the ward is authorized by such a court
order to expend funds received, the Department may make such
payments to him.

         When a guardian of the person of a ward has b,een ap-
pointed, the Clerk issues letters of guardianship in accord with
Section 185 of the Probate Code, which reads:

               "When a person appointed guardian has quali-
         fied as such, by taking the oath and giving the bond
         required by law, if bond be required, the clerk
         shall issue to him a certificate under seal, stating
         the fact of such appointment and qualification and
         the date thereof, which certificate shall constitute
         letters of guardianship, and be evidence of the auth-
         ority of such person to act as guardian."

         The Probate Code does not require the letters of guard-
ianship to specify the reason for such appointment, nor to state
the facts upon which the proceedings were based.   In our opinion,
there is no difference in letters of guardianship that evidences
the appointment of a guardian of the person of "John Doe, a per-
son of unsound mind", and the appointment of a guardian of the
person of "John Doe".

         Your supplemental request concerns the natural guard-
ian's authority to receive and expend public assistance payments.
Section 109 of the Probate Code reads in part as follows:

                "(a) Natural guardians.  If the parents
         live together, the father is the natural guardian
         of the person of the minor children by the marriage.
         If one parent is dead, the survivor is the natural
         guardian of the person of the minor children. The
         natural guardian is entitled to be appointed the
.   1




        Honorable John H. Winters, page 5      (m-524)



                 guardian of their estates. The rights of parents
                 who do not live together are equal; the guardian-
                 ship of their minor children sha~ll be assigned to
                 one or the other, the interest of the children
                 alone being considered."

                       "The authority of the natural guardian in-
                 sofar as the property of the ward is concerned
                 does tot extend to general control or management,
                 . . .   21 Tex. Jur. 136, Sec. 152,

                 The law does not recognize   in the natural guardian
        any property interest in the child,   but merely accords to
        him the benefits resulting from the   child's services during
        minority period. Legate v. Legate,    (1894)  87 Tex. 248,  -
        28 S.W. 281.

                  Since the natural guardian is given no control or
        management of the ward's estate or property, in our opinion,
        the Department would not be authorized to accept a public
        assistance application from such natural guardian, nor to
        make payments to him for the benefit of the ward. The answer
        to your first supplemental question is no; hence, there is
        no reason to answer the second supplemental question.

                 Attorney General's Opinion ~~-18 (1957), holding
        that the guardians there under consideration may not receive
        public assistance payments, has been superseded by the pro-
        visions of House Resolution 13549, above cited.

                                   SUMMARY

                 The Department of Public Welfare may make pay-
                 ments to a general guardian of the person of
                 the ward upon proper court order, but may not
                 make payments to the natural guardian of the
                 ward. Attorney General's Opinion ~~-18 (1957)
                 has been superseded.

                                        Yours very truly,

                                        WILL WILSON




        TIM:mfh:zt
                                              Assistant
Honorable John H. Winters,,page   6   (WW-524)




APPROVED:

OPINION COMMITTEE:
Geo. P. Blackburn, Chairman

Wm. R. Hemphill

Marietta Payne

Marvin R. Thomas

Ray V. Loftin

REVIEWED FOR THE ATTORNEY GENERAL

BY:   W. V. Geppert
