GUARDIANSHIP PROVISIONS OF CHAPTER 139, LAWS OF 1951

GUARDIANSHIP PROVISIONS OF CHAPTER 139, LAWS OF 1951.

Administrator of Veterans Administration has no authority to control a superintendent as guardian, in his disposition of personal property, regardless of source, belonging to a patient, received by said superintendent while the patient is in his jurisdiction so long as no guardian is appointed by court of competent jurisdiction.

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                                                                February 25, 1952

Honorable H. D. Van Eaton,Director
Department of Public Institutions
Olympia, Washington                                                                                             Cite as:  AGO 51-53 No. 243

Attention:  V. E. Billow

Dear Sir:

            We acknowledge receipt of your recent letter in which you propounded three questions requiring an opinion from this office.  We have rephrased and restated the questions in one interrogatory pursuant to our telephone conversation of recent date.  The question can be stated as follows:

            What authority has the Veterans Administration to control the superintendent of a state hospital for the insane in his disposition of personal property belonging to a patient in the custody of said superintendent?

            It is our conclusion that the Veterans Administration has no control over a superintendent in his disposition of personal property belonging to a patient, regardless of the source of said property.

                                                                     ANALYSIS

            Section 49, chapter 139, Laws of 1951, reads as follows:

             [[Orig. Op. Page 2]]

            "The superintendent of a state hospital shall be the guardian without compensation of the estate of a patient involuntarily hospitalized therein, without further proceedings and subject to the following limitations:

            "(1) He is guardian of such personal property as may come into his custody while the patient is under the jurisdiction of the hospital.

            "(2) As such guardian, the superintendent shall have authority to disburse moneys from the patient's estate for the following purposes only:

            "(a) For the personal needs of the patient as may be deemed necessary by the superintendent; and

            "(b) For the hospitalization charges of such patient where his estate contains moneys in the sum of three hundred dollars or more and where in the opinion of the superintendent such patient is not likely to be released within a period of six months.

            "(3) Annual reports of receipts and expenditures shall be forwarded to the department of public institutions, and shall be open to inspection by interested parties.

            "(4) The appointment of a guardian for the estate of such patient shall terminate the superintendent's authority as guardian upon the superintendent's receipt of certified copies of letters of guardianship, and the superintendent shall forward any property of the patient remaining in his hands to such guardian on request, together with a final accounting of receipts and expenditures.

            "(5) Moneys belonging to patients' estates may be deposited in a single fund.

             [[Orig. Op. Page 3]]

            "(6) The superintendent shall have no authority to sell, mortgage, or invest assets of the patient's estate:  Provided, however, That he may convert choses in action into cash."

            The language of the statute is clear and unequivocal.  It designates a superintendent the guardian of all personal property of a patient involuntary committed that may come into the custody of the superintendent while the patient is under the jurisdiction of the hospital.  The tenure of the guardianship is fixed and the powers of the guardian are explicit.

            Thus, having established that a superintendent of a state hospital is a guardian, we now proceed to answer the question.  Section 450, U.S.C.A., Title 38, reads in part as follows:

            "(1) Where any payment of compensation, adjusted compensation, pension, emergency officers' retirement pay, or insurance under any Act administered by the Veterans' Administration is to be made to a minor, other than a person in the military or naval forces of the United States, or to a person mentally incompetent, or under other legal disability adjudged by a court of competent jurisdiction, such payment may be made to the person who is constituted guardian, curator, or conservator by the laws of the State of residence of claimant, or is otherwise legally vested with the care of the claimant or his estate:  * * *Provided further, That where no guardian, curator, or conservator of the person under a legal disability has been appointed under the laws of the State of residence of the claimant, the Administrator shall determine the person who is otherwise legally vested with the care of the claimant or his estate.

            "(2) Whenever it appears that any guardian, curator, conservator, or other person, in the opinion of the Administrator, is not properly executing or has not properly executed the duties of his trust or has collected or paid, or is attempting to collect or pay,  [[Orig. Op. Page 4]] fees, commissions, or allowances that are inequitable or in excess of those allowed by law for the duties performed or expenses incurred, or has failed to make such payments as may be necessary for the benefit of the ward or the dependents of the ward, then and in that event the Administrator is empowered by his duly authorized attorney to appear in the court which has appointed such fiduciary, or in any court having original, concurrent, or appellate jurisdiction over said cause, and make proper presentation of such matters:  Provided, That the Administrator, in his discretion, may suspend payments to any such guardian, curator, conservator, or other person who shall neglect or refuse, after reasonable notice, to render an account to the Administrator from time to time showing the application of such payments for the benefit of such incompetent or minor beneficiary, or who shall neglect or refuse to administer the estate according to law:  Provided further, That the Administrator is authorized and empowered to appear or intervene by his duly authorized attorney in any court as an interested party in any litigation instituted by himself or otherwise, directly affecting money paid to such fiduciary under this section."

            There is nothing in the provisions of this section to indicate that it was the intent of the Congress to confer on the Veterans Administration any control or authority over such funds after they have come into the custody, possession and control of a guardian, curator, or conservator, but it would appear that the Congress intended that such guardian, curator, or conservator are burdened with the responsibilities imposed on such statutory trustees by the laws of the statute under which they are appointed.  The provision that the administrator may "in his discretion" suspend payment to any such "guardian, curator, conservator" does not connote an intent that supervision shall be retained after the money comes into the possession of such guardian, curator, or conservator.  White v. White, 230 Ala. 641, 162 So. 368.

            The court of civil appeals of Texas in the case of Bagwell v. McCombs, Tex. Cir. Appeal 1930, 31 S.W. (2d) 835, held that the disposition of payments made under the above section when the veteran is under guardianship is not governed by Federal law, but left to the laws of the state where he resides.

             [[Orig. Op. Page 5]]

            The Veterans Administration is possessed of certain powers, such as requiring an accounting by the guardian at least once a year.  Uniform Veterans' Guardianship Act, section 10, chapter 53, Laws of 1951.  However, as shown above, this grant of authority to the Veterans Administration does not extend to supervision of the superintendent in his disposition of personal property belonging to a patient.

            The approval by the Veterans Administration attorney, in advance, of an investment by the guardian of an incompetent veteran of funds of the veteran, has been held not to protect the guardian from liability on an accounting in state court, for making an improper investment.  White v. White, supra.

            The Supreme Court of Oklahoma, in the case of Re Vaughn's Guardianship, 181 Okla. 274, 73 P. (2d) 411, held that where an investment was made by a guardian at the discretion and under the authority of the state court having jurisdiction of the guardianship proceeding, the Veterans Administration could not challenge the wisdom of making the investment.  Though subsection 6, section 49, chapter 139, Laws of 1951, prohibits a superintendent investing funds of a patient's estate, the above authorities clearly establish that the Veterans Administration has no authority to control a superintendent in his disposition of personal property belonging to a patient.

            We are of the opinion that the administrator of the Veterans Administration has no authority to control a superintendent as guardian in his disposition of personal property, regardless of source, belonging to a patient, received by said superintendent while the patient is in his jurisdiction, so long as no guardian is appointed by court of competent jurisdiction.

Very truly yours,

SMITH TROY
Attorney General

J. HOUSTON VANZANT, JR.
Assistant Attorney General