B-122220, MARCH 1, 1955, 34 COMP. GEN. 407

B-122220, MARCH 1, 1955, 34 COMP. GEN. 407

UNIFORMED SERVICES PERSONNEL - DESIGNATION OF TRUSTEE FOR INCOMPETENT MEMBER WHERE A MENTALLY INCOMPETENT RETIRED OFFICER IS UNABLE TO OBTAIN THE BENEFIT OF HIS RETIRED PAY FROM A COURT-APPOINTED GUARDIAN OF HIS PROPERTY BECAUSE THE GUARDIAN MAY DISBURSE FUNDS ONLY TO A DULY APPOINTED GUARDIAN OF HIS PERSON, AND NO LEGAL APPOINTMENT OF A PERSONAL GUARDIAN IS CONTEMPLATED, A TRUSTEE MAY BE ADMINISTRATIVELY DESIGNATED UNDER THE ACT OF JUNE 21, 1950, TO RECEIVE HIS RETIRED PAY NOTWITHSTANDING THE PROVISO IN SECTION 2 OF SAID ACT WHICH PROHIBITS AN ADMINISTRATIVE DESIGNATION OF TRUSTEE WHEN A LEGAL GUARDIAN HAS BEEN APPOINTED BY A COURT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, MARCH 1, 1955:

YOUR LETTER OF DECEMBER 1, 1954, REQUESTS DECISION WHETHER, IN THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES, A "TRUSTEE" MAY BE APPOINTED UNDER THE PROVISIONS OF THE ACT OF JUNE 21, 1950, 64 STAT. 249, TO RECEIVE PAYMENTS OF RETIRED PAY ON BEHALF OF CAPTAIN H; A MENTALLY INCOMPETENT OFFICER.

IT APPEARS THAT CAPTAIN H. WAS DECLARED MENTALLY INCOMPETENT TO ADMINISTER HIS OWN AFFAIRS BY A COURT OF COMPETENT JURISDICTION IN THE STATE OF FLORIDA. A GUARDIAN OF THE OFFICER'S PROPERTY WAS APPOINTED BY THE FLORIDA COURT BUT A GUARDIAN OF HIS PERSON HAS NEVER BEEN APPOINTED. IT APPEARS FROM AN ENCLOSED COPY OF A LETTER FROM THE ATTORNEYS FOR THE LEGAL GUARDIAN, A BANKING INSTITUTION, THAT THERE IS NO AUTHORITY FOR DISBURSEMENT OF FUNDS BY THE FLORIDA GUARDIAN OF CAPTAIN H-S. PROPERTY FOR HIS CARE AND WELFARE TO ANY PERSON OR ORGANIZATION NOT DULY APPOINTED THE GUARDIAN OF HIS PERSON.

THE ACT OF JUNE 21, 1950, PROVIDES IN PERTINENT PART, THAT:

SEC. 2. ANY * * * RETIRED OR RETAINER PAY, OTHERWISE PAYABLE TO ANY MEMBER OF THE UNIFORMED SERVICES WHO, IN THE OPINION OF COMPETENT MEDICAL AUTHORITY, IS MENTALLY INCAPABLE OF MANAGING HIS OWN AFFAIRS, IS AUTHORIZED TO BE PAID, FOR THE USE AND BENEFIT OF SUCH INCOMPETENT MEMBER, TO SUCH PERSON OR PERSONS WHO MAY BE DESIGNATED BY THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, THE SECRETARY OF THE AIR FORCE, THE SECRETARY OF THE TREASURY, THE SECRETARY OF COMMERCE, THE FEDERAL SECURITY ADMINISTRATOR, OR SUCH OTHER OFFICER OR OFFICERS AS THE RESPECTIVE SECRETARIES OR ADMINISTRATOR MAY DESIGNATE FOR SUCH PURPOSES, WITHOUT THE NECESSITY FOR APPOINTMENT IN JUDICIAL PROCEEDINGS OF A COMMITTEE, GUARDIAN, OR OTHER LEGAL REPRESENTATIVE, AND ANY PAYMENTS TO THE PERSON OR PERSONS SO APPOINTED AS PROVIDED HEREIN SHALL CONSTITUTE A COMPLETE DISCHARGE OF THE OBLIGATION OF THE UNITED STATES AS TO THE AMOUNTS SO PAID: * * * PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY WHERE A LEGAL COMMITTEE, GUARDIAN, OR OTHER REPRESENTATIVE HAS BEEN APPOINTED BY A COURT OF COMPETENT JURISDICTION, EXCEPT AS TO ANY PAYMENTS MADE HEREUNDER PRIOR TO THE RECEIPT IN THE PAYING AGENCY OF THE DEPARTMENT OR AGENCY CONCERNED OF NOTICE OF SUCH APPOINTMENT: * * *

SEC. 3. THE SECRETARY OF THE DEPARTMENT CONCERNED AND THE FEDERAL SECURITY ADMINISTRATOR SHALL PRESCRIBE SUCH REGULATIONS AS MAY BE NECESSARY TO CARRY OUT EFFECTIVELY THE PROVISIONS OF THIS ACT, INCLUDING A REQUIREMENT THAT SUCH PERSON OR PERSONS DESIGNATED TO RECEIVE PAYMENTS AS PROVIDED IN SECTION 2 ABOVE SHALL FURNISH SATISFACTORY ASSURANCES THAT AMOUNTS RECEIVED HAVE BEEN AND WILL BE APPLIED TO THE USE AND BENEFIT OF THE INCOMPETENT AND, IN CASES WHEREIN THE PAYMENTS MAY BE REASONABLY EXPECTED TO EXCEED $1,000, THAT A SUITABLE BOND SHALL BE PROVIDED BY SUCH PERSON OR PERSONS WHICH MAY BE PAID FOR OUT OF SUMS DUE THE INCOMPETENT.

PRIOR TO THE ENACTMENT OF SUCH PROVISIONS THE PAY ACCRUING TO AN INCOMPETENT MEMBER OF THE UNIFORMED SERVICES COULD BE PAID ONLY TO A LEGALLY APPOINTED GUARDIAN. HENCE, WHERE NO LEGAL GUARDIAN WAS APPOINTED, THE PAY SIMPLY ACCUMULATED IN HIS ACCOUNT. IT WAS NOT AVAILABLE FOR THE CARE AND MAINTENANCE OF THE INCOMPETENT MEMBER AND, UNLESS THE MEMBER HAD REGISTERED AN ALLOTMENT IN THEIR FAVOR PRIOR TO HIS INCOMPETENCY, HIS DEPENDENTS RECEIVED NOTHING FOR THEIR SUPPORT.

THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 21, 1950, SHOWS THAT ITS PURPOSE IS TO PROVIDE LEGAL AUTHORITY FOR THE PAYMENT OF AMOUNTS DUE INCOMPETENT MEMBERS OF THE UNIFORMED SERVICES TO DESIGNATED PERSONS FOR THEIR USE AND BENEFIT AND FOR THE USE AND BENEFIT OF THEIR DEPENDENTS, WHERE NO LEGAL GUARDIAN, ETC., HAS BEEN APPOINTED BY A STATE COURT. GIVING CONSIDERATION TO SUCH PURPOSE AND TO THE FACT THAT A GUARDIAN GENERALLY HAS THE POWER AND DUTY OF PAYING FROM THE FUNDS OF HIS WARD ALL JUST DEBTS WHICH ARE DUE FROM THE WARD AND THAT THE FAMILY OF THE WARD ORDINARILY IS ENTITLED TO SUPPORT AND MAINTENANCE FROM HIS ESTATE (25 AM. JUR; GUARDIAN AND WARD, 78, 79), IT SEEMS CLEAR THAT THE TERM "COMMITTEE, GUARDIAN, OR OTHER LEGAL REPRESENTATIVE," CONTAINED IN THE PROVISO OF SECTION 2 OF THE ACT, HAS REFERENCE TO COURT-APPOINTED OFFICIALS WHO ARE AUTHORIZED TO DISBURSE THE FUNDS OF THE ESTATE FOR THOSE PURPOSES. OTHERWISE THE STATUTE WOULD BE INEFFECTIVE TO REMEDY THE SITUATION WHICH IT WAS ENACTED TO PREVENT IN CASES SUCH AS THIS WHERE THE GUARDIAN OF THE OFFICER'S PROPERTY DOES NOT POSSESS THAT AUTHORITY.

IT HAS BEEN HELD THAT MONEYS DUE FROM THE GOVERNMENT HAVE NO SITUS IN ANY PARTICULAR STATE BUT MAY BE PAID IN ANY PLACE WHERE THE GOVERNMENT CHOOSES TO PAY IT (1UNITED STATES V. BORCHERLING, 185 U.S. 223). SINCE IT APPEARS THAT THIS RETIRED OFFICER IS UNABLE TO OBTAIN ANY OF THE BENEFITS OF HIS RETIRED PAY FROM THE GUARDIAN OF HIS PROPERTY, AND IT IS STATED THAT THE LEGAL APPOINTMENT OF A GUARDIAN OF HIS PERSON IS NOT CONTEMPLATED, IT IS OUR VIEW THAT THE DESIGNATION OF A PERSON UNDER THE PROVISIONS OF THE ACT OF JUNE 21, 1950, TO RECEIVE PAYMENTS OF HIS RETIRED PAY IS BOTH PROPER AND DESIRABLE.