                              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
