B-178270, OCT 17, 1974, 54 COMP GEN 285

B-178270, OCT 17, 1974, 54 COMP GEN 285

PAY - RETIRED - SURVIVOR BENEFIT PLAN - INCOMPETENTS - ELECTION BY GUARDIAN OR COMMITTEE WHERE A COURT OF COMPETENT JURISDICTION DETERMINED THAT A MEMBER WAS MENTALLY OR PHYSICALLY INCAPABLE OF MANAGING HIS OWN AFFAIRS UNDER STATE LAW WHICH VESTS IN A GUARDIAN OR COMMITTEE THE POWER TO ACT FOR AND ON BEHALF OF THE ADJUDGED INDIVIDUAL AND SUCH A GUARDIAN OR COMMITTEE WAS APPOINTED TO MANAGE ALL HIS AFFAIRS, WITHOUT LIMITATION, AN ELECTION MADE BY THE GUARDIAN OR COMMITTEE UNDER THE SURVIVOR BENEFIT PLAN ON BEHALF OF THE MEMBER BEFORE HIS DEATH WAS VALID AND BECAME EFFECTIVE WHEN RECEIVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED.

IN THE MATTER OF A COMMITTEE'S ELECTION UNDER THE SURVIVOR BENEFIT PLAN, OCTOBER 17, 1974:

THIS ACTION IS IN RESPONSE TO A LETTER DATED DECEMBER 7, 1973 (FILE REFERENCE NCF-4117720/6-5), WITH ENCLOSURES, WHICH IN EFFECT REQUESTS AN ADVANCE DECISION ON THE QUESTION AS TO WHETHER THE ACTION TAKEN IN THE CASE OF THE LATE COMMANDER CADWALLADER F. BLANCHARD, USN (RETIRED), CONSTITUTED A VALID ELECTION UNDER THE SURVIVOR BENEFIT PLAN (SBP), 10 U.S.C. 1447-1455, AS ADDED BY PUBLIC LAW 92-425, EFFECTIVE SEPTEMBER 21, 1972, 86 STAT. 706.

THE FILE SHOWS THAT THE MEMBER, WHO WAS RETIRED FROM THE UNITED STATES NAVY IN NOVEMBER 1958, WAS PARALYZED BY A STOKE, COULD NEITHER WALK NOR COMMUNICATE, THEREBY BECOMING A COMPLETE AND TOTAL INVALID. ON MAY 28, 1971, PHILIP N. BROPHY, ESQ., WAS APPOINTED THE GUARDIAN OR COMMITTEE OF THE ESTATE OF THE MEMBER BY THE CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA, UNDER THE PROVISIONS OF SECTION 37.1-132, VIRGINIA CODE, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

ON PETITION OF ANY PERSON IN INTEREST TO THE CIRCUIT COURT OF THE COUNTY *** IN WHICH ANY PERSON WHO BY REASON OF ADVANCED AGE OR IMPAIRED HEALTH, OR PHYSICAL DISABILITY, HAS BECOME MENTALLY OR PHYSICALLY INCAPABLE OF TAKING PROPER CARE OF HIS PERSON OR PROPERLY HANDLING AND MANAGING HIS ESTATE, RESIDES, THE COURT *** MAY APPOINT SOME SUITABLE PERSON TO BE THE GUARDIAN OR COMMITTEE OF HIS PERSON OR PROPERTY, AND THE GUARDIAN OR COMMITTEE SHALL HAVE THE SAME RIGHTS AND DUTIES WHICH PERTAIN TO COMMITTEES AND TRUSTEES APPOINTED UNDER SEC. 37.1-127 OR 37.1-134 ***.

BY LETTER DATED OCTOBER 10, 1972, MR. BROPHY WROTE TO THE U.S. NAVY FINANCE CENTER, MAKING INQUIRY CONCERNING THE MEMBER'S PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (RSFPP) AND AVAILABLE COVERAGE FOR THE MEMBER UNDER THE THEN RECENTLY ENACTED SURVIVOR BENEFIT PLAN. BY LETTER DATED FEBRUARY 9, 1973, MR. BROPHY WAS PROVIDED THE DETAILS OF THE MEMBER'S PARTICIPATION IN THE RSFPP AND THE COSTS OF COVERAGE UNDER THE SBP IN ORDER TO PROVIDE MAXIMUM ANNUITY ON THE MEMBER'S THEN GROSS RETIRED PAY. IN ADDITION, THAT LETTER MADE REFERENCE TO AND ENCLOSED INSTRUCTIONS RELATING TO SBP COVERAGE PROCEDURES FOR "INCOMPETENT MEMBERS."

BY LETTER DATED FEBRUARY 15, 1973, MR. BROPHY SET FORTH THE BASIC DETAILS OF THE SBP COVERAGE DESIRED IN THE MEMBER'S CASE, AND IN ACCORDANCE WITH THE BEFORE-MENTIONED INSTRUCTIONS, REQUESTED THE SECRETARY OF THE NAVY TO ELECT, ON BEHALF OF COMMANDER BLANCHARD, COVERAGE UNDER THE SBP FOR MRS. BLANCHARD AND IN ADDITION, TO RETAIN COMMANDER BLANCHARD'S PARTICIPATION IN THE RSFPP. WITH HIS REQUEST, MR. BROPHY SUBMITTED A CERTIFICATE ISSUED BY THE CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA, REFLECTING HIS APPOINTMENT AS COMMITTEE OF COMMANDER BLANCHARD'S ESTATE. IN REPLY TO HIS REQUEST, THE CHIEF OF NAVAL PERSONNEL INFORMED MR. BROPHY BY LETTER DATED MARCH 13, 1973, THAT THE COURT CERTIFICATE OF HIS APPOINTMENT WAS NOT ADEQUATE PROOF THAT COMMANDER BLANCHARD WAS MENTALLY INCOMPETENT AND DID NOT, THEREFORE, PROVIDE A SUFFICIENT BASIS UPON WHICH THE SECRETARY OF THE NAVY WAS AUTHORIZED TO ELECT SBP COVERAGE WITHIN THE MEANING OF 10 U.S.C. 1449. MR. BROPHY WAS FURTHER INFORMED THAT, FOR THIS PURPOSE, A LETTER FROM THE COURT CERTIFYING THAT HIS APPOINTMENT AS COMMITTEE WAS DUE TO COMMANDER BLANCHARD'S MENTAL INCOMPETENCY WOULD SUFFICE. ON MARCH 12, 1973, THE DAY BEFORE THE LETTER FROM THE CHIEF OF NAVAL PERSONNEL WAS RELEASED TO MR. BROPHY, COMMANDER BLANCHARD DIED.

BY LETTER DATED JULY 24, 1973, THE DIRECTOR, RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER, INFORMED MR. BROPHY THAT IN VIEW OF THE AMBIGUOUS AND INCONCLUSIVE EVIDENCE AS TO THE LATE MEMBER'S MENTAL CONDITION, AND THE ABSENCE OF A DECLARATION OF SUCH INCOMPETENCY, THERE WAS NO ALTERNATIVE IN THIS CASE OTHER THAN TO CONSIDER THE LATE MEMBER TO BE MENTALLY CAPABLE OF MAKING A DECISION WITH RESPECT TO THE SBP. FURTHER, THAT SINCE THE DIRECTOR KNEW OF NO PROVISION OF LAW WHICH WOULD ALLOW ANYONE TO ELECT FOR A MENTALLY COMPETENT PERSON, THE ELECTION ON BEHALF OF COMMANDER BLANCHARD COULD NOT BE HONORED.

BY LETTER DATED AUGUST 29, 1973, ADDRESSED TO THE DIRECTOR, RETIRED PAY DEPARTMENT, MR. BROPHY CONTENDED THAT THE COURT ORDER WHICH ESTABLISHED HIM AS COMMITTEE NEITHER STATED SPECIFICALLY THAT COMMANDER BLANCHARD WAS MENTALLY INCOMPETENT, NOR THAT HE WAS PHYSICALLY INCAPABLE; THE ORDER MERELY DECLARED THE MEMBER INCAPABLE OF MANAGING HIS OWN AFFAIRS FOR EITHER OF THE REASONS. MR. BROPHY FURTHER CONTENDED THAT ONCE THE COURT ORDER WAS ENTERED, SECTION 37.1-140 FORBIDS ANY ACTION OR SUIT ON ANY CLAIM OR DEMAND BY OR FOR THE INCOMPETENT, AND THAT SECTION 37.1-142 GIVES THE POWER TO THE FIDUCIARY TO TAKE CARE OF AND PRESERVE THE WARD'S ESTATE AND MANAGE IT TO THE WARD'S BEST ADVANTAGE. THEREFORE, IT WAS MR. BROPHY'S POSITION THAT, FROM THE DATE OF THE COURT ORDER, COMMANDER BLANCHARD HAD NO AUTHORITY UNDER VIRGINIA LAW TO HANDLE HIS OWN PERSONAL BUSINESS AND THAT THE ELECTION MADE BY MR. BROPHY AS THE COMMITTEE OF THE LATE MEMBER WAS A VALID ELECTION.

COMMANDER BLANCHARD'S ELIGIBILITY TO PARTICIPATE IN THE SBP WAS BY VIRTUE OF SUBSECTION 3(B) OF THE ACT OF SEPTEMBER 21, 1972, PUBLIC LAW 92-425, WHICH PROVIDES THAT ANY PERSON WHO IS ENTITLED TO RETIRED OR RETAINER PAY ON THE EFFECTIVE DATE OF THE ACT MAY ELECT TO PARTICIPATE IN THE SBP. SUBSECTION 3(E) OF THE ACT PROVIDES THAT AN ELECTION MADE UNDER SUBSECTION 3(B) IS EFFECTIVE ON THE DATE IT IS RECEIVED BY THE SECRETARY CONCERNED. (10 U.S.C. 1448 NOTE.)

DOUBT HAS ARISEN CONCERNING THE VALIDITY OF THE COMMITTEE'S ELECTION BECAUSE OF CERTAIN LANGUAGE IN OUR DECISION B-171793, APRIL 5, 1971, INVOLVING AN ELECTION UNDER THE RSFPP MADE BY A SPOUSE PURSUANT TO A POWER OF ATTORNEY BECAUSE THE MEMBER WAS TOO ILL TO SIGN HIS NAME. WE STATED THEREIN THAT WE WERE NOT AWARE OF ANY LAW AUTHORIZING MILITARY PERSONNEL TO DELEGATE TO ANOTHER THE POWER TO ELECT ANY RETIREMENT OR ANNUITY BENEFIT ON THEIR BEHALF OTHER THAN THE SECRETARIAL ELECTION PROVISIONS FOR MENTALLY INCOMPETENTS UNDER 10 U.S.C. 1433.

WE ARE OF THE VIEW THAT THE CASE WHERE AN ELECTION IS MADE PURSUANT TO A POWER OF ATTORNEY IS COMPLETELY DIFFERENT FROM THE CASE WHERE A MEMBER HAS BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INCAPABLE OF MANAGING HIS OWN AFFAIRS AND THE POWER TO MANAGE THEM WITHOUT LIMITATION HAS BEEN VESTED IN A COMMITTEE. IN THE LATTER SITUATION THE COMMITTEE RECEIVES HIS POWER AS A RESULT OF A PROPER JUDICIAL PROCESS WHICH DOES NOT REQUIRE ANY CONCURRENCE BY THE INDIVIDUAL ADJUDGED INCOMPETENT, AS COMPARED TO THE FORMER SITUATION WHERE THE PERSON ACTING ON BEHALF OF AN INDIVIDUAL RECEIVES HIS AUTHORITY DIRECTLY FROM THE INDIVIDUAL, BY HIS OWN VOLUNTARY ACT.

IN THE PRESENT CASE, THE CIRCUIT COURT DETERMINED THAT BECAUSE OF ADVANCED AGE AND IMPAIRED HEALTH, THE MEMBER WAS INCAPABLE OF MANAGING HIS OWN AFFAIRS. IN VIEW OF THE SUBSTANTIAL EVIDENCE CONCERNING THE TOTAL DETERIORATION OF THE MEMBER'S PHYSICAL CONDITION AND HIS INABILITY TO EVEN COMMUNICATE AND THE FACT THAT THE MANAGEMENT OF THE MEMBER'S AFFAIRS WAS COMPLETELY REMOVED FROM HIS CONTROL AND PLACED IN HIS COMMITTEE, IT IS OUR VIEW THAT THE COURT IN EFFECT DETERMINED THAT THE MEMBER WAS TOTALLY INCAPABLE OF MANAGING HIS OWN AFFAIRS.

UNDER VIRGINIA LAW, MR. BROPHY, AS COMMITTEE, WAS VESTED WITH COMPLETE AUTHORITY TO DO THE MEMBER'S EVERY LEGAL ACT, WHICH INCLUDED THE MAKING OF AN ELECTION INTO THE SBP. HIS LETTER DATED FEBRUARY 15, 1973, IN OUR VIEW, IS TO BE CONSIDERED AS A VALID ELECTION INTO THE PLAN UNDER SUBSECTION 3(B)(1) OF PUBLIC LAW 92-425, AND EFFECTIVE FROM THE DATE RECEIVED IN THE APPROPRIATE ADMINISTRATIVE OFFICE. CF. 53 COMP. GEN. 519 (1974).