23 Miss. Code. R. 103-1.21 - Types of Access

A. Resources are accessible through an agent, litigation or a petition-conservatorship account under SSI and liberalized resource policy:

1. Access Via an Agent. An individual is considered to have free access to, and unrestricted use of, property even when he can take those actions only through an agent, such as a representative payee or guardian.

a) Example: Joan Shoto receives Social Security. Her mother, Laura Shoto, is her representative payee and has Power of Attorney. The bank account is a countable resource to Joan because she has unlimited access through her mother.

2. Access Only Via Litigation. If there is a legal restriction, or a bar, to the sale or use of property, such as a co-owner legally blocks the sale of jointly-owned property, an individual is not required to undertake litigation to accomplish the sale or access. The property is not a resource under such circumstances in a month if a legal bar exists any time in the month.

a) Example: Shelley Lumpkin and her sister, Susan Smith, co-own a piece of property they inherited from their parents. Last year Susan took legal action to prevent Shelley from selling. Shelley is not required to enter into litigation to gain the ability to sell, so the property is not a resource to her.

3. Access Via Petition. Petitioning a court is different from undertaking litigation, and:

a) Seeking court approval is not a legal restriction against use.

b) Although the individual does not have access to the asset, the conservator does. Therefore, it is available for the individual's support and maintenance and is, therefore, that individual's resource. This is true despite the fact that the individual or his agent is required to petition the court to withdraw funds for the individual's support and maintenance.

c) The conservator will be allowed a period of time to petition the court. Once the conservator has verified a petition has been filed with the court, the regional office will follow-up to determine the outcome.

Notes

23 Miss. Code. R. 103-1.21

Social Security Act §1902 (r)(2); 42 CFR §435.601(b) (Rev 1994).