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."