B-155687, JAN. 11, 1965, 44 COMP. GEN. 390

B-155687, JAN. 11, 1965, 44 COMP. GEN. 390

INSANE AND INCOMPETENTS - PAYMENT TO STATE INSTITUTIONS THE ANNUITY PAYMENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, WITHHELD FROM AN UNREMARRIED WIDOW INCAPABLE OF ENDORSING CHECKS AND MANAGING HER OWN AFFAIRS, A PATIENT IN A STATE HOSPITAL FOR WHOM NO COMMITTEE WAS APPOINTED, AND THOSE SUBSEQUENTLY BECOMING DUE, MAY BE FORWARDED TO THE HOSPITAL DIRECTOR, PURSUANT TO A STATE STATUTE REQUIRING THE OFFICIAL TO OBTAIN A CERTIFICATE OF AUTHORITY AND IMPOSING A LIMITATION ON THE TOTAL AMOUNT THAT MAY BE RECEIVED ON THE WIDOW'S BEHALF, AND THE CHECKS THAT ISSUE MAY BE ENDORSED AND CASHED BY THE DIRECTOR, AND THE PROCEEDS PLACED TO HER CREDIT WITHOUT AN ACCOUNTING BEING MADE TO THE GOVERNMENT AS TO THE USE OF THE FUNDS.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, JANUARY 11, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 3, 1964, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER ANNUITY PAYMENTS DUE MRS. MARIE V. WOLFENBERGER, AS UNREMARRIED WIDOW OF CAPTAIN EUGENE WOLFENBERGER, USNR, RETIRED, DECEASED, 67945, MAY BE ISSUED ON HER BEHALF TO THE DIRECTOR OF THE KINGS PARK STATE HOSPITAL, KINGS PARK, NEW YORK, IN WHICH HOSPITAL MRS. WOLFENBERGER IS A PATIENT. YOUR REQUEST WAS FORWARDED HERE BY SECOND INDORSEMENT DATED NOVEMBER 30, 1964, OF THE COMPTROLLER OF THE NAVY, AND WAS ASSIGNED SUBMISSION NUMBER DO-N-815, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT BEGINNING DECEMBER 1, 1960, ANNUITY AT THE RATE OF $81.74 WAS ESTABLISHED IN FAVOR OF MRS. WOLFENBERGER PURSUANT TO THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 143-1446. ANNUITY CHECKS HAVE BEEN WITHHELD SINCE APRIL 1, 1964, AND PAYMENTS TOTALING $572.18 FOR THE PERIOD APRIL 1 THROUGH OCTOBER 31, 1964, ARE DUE THE ANNUITANT.

BY LETTER DATED MAY 4, 1964, DR. CHARLES BUCKMAN, DIRECTOR, KINGS PARK STATE HOSPITAL, ADVISED THAT MRS. WOLFENBERGER IS INCAPABLE OF ENDORSING CHECKS AND MANAGING HER OWN AFFAIRS. IN A LETTER DATED JUNE 25, 1964, JOHN M. WILSON, JR., REIMBURSEMENT AGENT, DEPARTMENT OF MENTAL HYGIENE, STATE OF NEW YORK, ASKED YOU TO ADVISE IF YOU CAN MAKE THE PATIENT'S CHECKS PAYABLE TO THE DIRECTOR OF THE HOSPITAL UNDER THE MENTAL HYGIENE LAW OF THE STATE OF NEW YORK AS OTHER FEDERAL AGENCIES DO. ON AUGUST 14, 1964, MR. WILSON QUOTED PERTINENT PROVISIONS OF THE MENTAL HYGIENE LAW OF THE STATE OF NEW YORK, SET FORTH BELOW, AND STATED THAT IF IT IS AGREED TO ALLOW THE DIRECTOR OF THE HOSPITAL TO RECEIVE MRS. WOLFENBERGER'S ANNUITY CHECKS HE WOULD OBTAIN THE NECESSARY CERTIFICATE OF AUTHORITY PURSUANT TO THE STATUTE.

BY LETTER DATED SEPTEMBER 2, 1964, EUGENE T. WOLFENBERGER, THE BENEFICIARY'S SON, INDICATED THAT NO COMMITTEE HAS BEEN APPOINTED, THAT SOCIAL SECURITY BENEFITS DUE HIS MOTHER ARE BEING PAID TO THE HOSPITAL, AND THAT HE ASSUMED THE ANNUITY CHECKS HAD BEEN GOING TO THE HOSPITAL DIRECTLY.

ON THIS SET OF CIRCUMSTANCES YOU REQUESTED AN ADVANCE DECISION AS TO WHETHER ANNUITY PAYMENTS MAY BE ISSUED ON MRS. WOLFENBERGER'S BEHALF TO THE DIRECTOR OF THE KINGS PARK STATE HOSPITAL, UNDER THE PROVISIONS OF THE MENTAL HYGIENE LAW OF NEW YORK. IF THE ANSWER IS IN THE AFFIRMATIVE, YOU ALSO ASKED WHETHER THE DIRECTOR WILL BE REQUIRED TO RENDER ACCOUNTING REPORTS TO THE NAVY DEPARTMENT SIMILAR TO THOSE REQUIRED OF TRUSTEES PROVIDED UNDER 37 U.S.C. 351-354 AND, IF SO, HOW OFTEN SHOULD SUCH REPORTS BE SUBMITTED.

PARAGRAPH 14, SECTION 34, ARTICLE 3 OF THE MENTAL HYGIENE LAW OF NEW YORK PROVIDES AS FOLLOWS:

THE COMMISSIONER MAY AUTHORIZE THE DIRECTORS OF STATE INSTITUTIONS IN THE DEPARTMENT TO RECEIVE OR OBTAIN FUNDS OR OTHER PERSONAL PROPERTY EXCEPTING JEWELRY DUE OR BELONGING TO A PATIENT WHO HAS NO COMMITTEE, UP TO AN AMOUNT OR VALUE NOT EXCEEDING TWO THOUSAND FIVE HUNDRED DOLLARS WITHOUT TAKING PROCEEDINGS FOR THE APPOINTMENT OF A COMMITTEE; AND ALSO FROM A COMMITTEE UPON HIS DISCHARGE WHEN THE FINAL ORDER SO PROVIDES WHERE THE BALANCE REMAINING IN THE HANDS OF SUCH COMMITTEE DOES NOT EXCEED SUCH AMOUNT. SUCH PERSONAL PROPERTY EXCEPTING JEWELRY OTHER THAN MONEYS SHALL BE RETAINED BY THE DIRECTOR FOR THE BENEFIT OF THE PATIENTS FOR WHOM RECEIVED, UNTIL SOLD AS HEREINAFTER PROVIDED. SUCH FUNDS AND THE PROCEEDS OF THE SALE OF OTHER PERSONAL PROPERTY SO RECEIVED SHALL BE PLACED TO THE CREDIT OF THE PATIENTS FOR WHOM RECEIVED, AND DISBURSED, ON THE ORDER OF THE DIRECTOR, TO PROVIDE LUXURIES, COMFORTS AND NECESSITIES FOR SUCH PATIENTS, INCLUDING SUPPORT AND BURIAL EXPENSES. THE COMMISSIONER MAY AUTHORIZE DIRECTORS, ON BEHALF OF SUCH PATIENTS TO GIVE RECEIPTS, EXECUTE RELEASES AND OTHER DOCUMENTS REQUIRED BY LAW OR COURT ORDER, TO ENDORSE CHECKS AND DRAFTS, AND TO CONVERT PERSONAL PROPERTY EXCEPTING JEWELRY INTO MONEY BY SALE FOR AN ADEQUATE CONSIDERATION, AND TO EXECUTE BILL OF SALE OR TO PERMIT PATIENTS TO DO SO, IN ORDER THAT THE PROCEEDS MAY BE DEPOSITED TO THE CREDIT OF SUCH PATIENTS IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.

A SIMILAR QUESTION INVOLVING THE EFFECT OF AN EARLIER NEW YORK STATUTE WAS CONSIDERED IN OUR DECISION OF OCTOBER 10, 1933, 13 COMP. GEN. 97. THE BASIS OF THE AFFIRMATIVE ANSWER THEREIN, IT IS CONCLUDED THAT A CHECK COVERING THE TOTAL AMOUNT DUE MRS. WOLFENBERGER MAY BE FORWARDED TO HER IN CARE OF THE DIRECTOR, KINGS PARK STATE HOSPITAL, WHEN THAT OFFICIAL HAS OBTAINED THE NECESSARY CERTIFICATE OF AUTHORITY PURSUANT TO THE STATUTE AND IT HAS BEEN DETERMINED THAT THE TOTAL AMOUNT ALREADY RECEIVED BY THE HOSPITAL ON MRS. WOLFENBERGER'S BEHALF FROM OTHER SOURCES, PLUS THE AMOUNT OF THE PROPOSED PAYMENT WILL NOT EXCEED THE MAXIMUM AMOUNT ($2,500) WHICH MAY BE RECEIVED BY THE HOSPITAL. SUBJECT TO THAT LIMITATION SUBSEQUENT ANNUITY CHECKS MAY BE SO FORWARDED AS THE AMOUNTS INVOLVED BECAME DUE. SUCH CHECKS MAY BE ENDORSED AND CASHED BY THE DIRECTOR AND THE PROCEEDS PLACED TO HER CREDIT. NO ACCOUNTING REPORTS AS TO THE USE OF SUCH FUNDS ARE REQUIRED TO BE MADE TO THE DEPARTMENT OF THE NAVY.