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Federal Register / Vol. 86, No. 43 / Monday, March 8, 2021 / Proposed Rules
payee and if any previous appointments as representative payee were revoked or terminated due to misuse.
849.305 Notice of the determination to select a representative payee.

a If the agency determines that the annuitant requires a representative payee due to mental incompetence or other legal disability or is physically or mentally unable to manage or direct the management of his or her annuity payments, the agency will issue a written decision to the annuitant. The decision will include a statement of the findings and determinations;
specifically, the individual or organization named as the representative payee, and an explanation of the right to appeal the decision under 831.110 and 841.307
of this chapter. If the annuitant appeals the decision, the agency will continue to make direct payments to the annuitant until the due process rights have been exhausted.
b A decision by the agency to not select an individual or organization as a representative payee is not subject to the due process procedures described in 5
U.S.C. 8347d and 8461e.
Subpart DResponsibility and Accountability of a Representative Payee
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849.401 Responsibilities of a representative payee.

a A representative payee shall, subject to review by the agency and subject to such requirements as it may periodically prescribe, apply the payments made on behalf of the annuitant only for the use and benefit of such annuitant, and in a manner or purpose that is in the best interest of the annuitant.
b A representative payee shall notify the agency of any event that will affect the amount of benefits the annuitant receives or the right of the annuitant to receive benefits.
c A representative payee shall notify the agency of any change in circumstances that would affect performance of the payees responsibilities.
d A representative payee shall keep the annuity paid to him or her on behalf of the annuitant separate from his or her own money in an account that shows that the annuitant is still the owner of the funds. The applicant must show proof of this account when applying to be the representative payee and use this account for direct deposit. Exceptions to this paragraph d are joint accounts for spouses, when one spouse applies to be representative payee for the other
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spouse and they already have an existing joint account.
e Any interest earned on the annuity will be the annuitants property.
f A representative payee shall respond to requests, regarding the use of annuity payments, from OPM within a specified period of time.
849.402

Use of payments.

a Current maintenance. Payments certified to a representative payee on behalf of an annuitant shall be considered as having been applied for the use and benefit of the annuitant when they are used for the annuitants current maintenance. Current maintenance includes costs incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.
b Institutional care. If an annuitant is receiving care in a Federal, state, or private institution because of mental or physical incapacity, current maintenance includes the customary charges made by the institution in providing care and maintenance, as well as expenditures for those items which will aid in the annuitants recovery or release from the institution or expenses for personal needs which will improve the annuitants conditions while in the institution.
c Support of legal dependents. If the current maintenance needs of the annuitant are met, the representative payee may use part of the payments for the support of the annuitants legally dependent spouse, child, and/or parent.
d Claims of creditors. A
representative payee may satisfy debts to creditors out of present benefit payments only if the current and reasonably foreseeable needs of the annuitant are met.
e Conservation and investment.
After the representative payee has used the annuity payments consistent with the rules in paragraphs a through d of this section, any remaining annuity shall be conserved or invested on behalf of the annuitant. Any investment must show clearly that the representative payee holds the property in trust for the annuitant.
849.403 Accountability of a representative payee.

a An individual, or institution, to whom payments are made as representative payee on behalf of an annuitant is accountable for the use of the payments and shall submit a written report in such form and at such times as the agency may require, accounting for the payments certified to him or her on behalf of the annuitant.
b If, however, such payee is a courtappointed fiduciary and, as such, is
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required to make an annual accounting to the court, a true copy of each such account filed with the court may be submitted in lieu of the accounting form prescribed by the agency.
c If any representative payee fails to submit the required accounting within the specified period of time after it is requested, no further payments shall be made to the representative payee on behalf of the annuitant unless for good cause shown, the default of the representative payee is excused by the agency and the required accounting is thereafter submitted.
d At any time after the agency has selected a representative payee, the agency may ask such payee to submit information showing a continuing relationship to the annuitant and a continuing responsibility for the care of the annuitant. If the representative payee does not give the agency the requested information within the specified period of time, the agency may stop paying such payee unless the agency determines that the payee had a good reason for not complying with the request, and the agency receives the information requested.
Subpart EMisuse of Annuity by a Representative Payee 849.501 Misuse of benefits by a representative payee.

a It is unlawful for a representative payee to misuse the payments received on behalf of an annuitant. For purposes of this subpart, misuse of benefits by a representative payee occurs in any case in which the representative payee receives payment on behalf of an annuitant and embezzles or converts such payment, or any part thereof, to a use other than for the use and benefit of the annuitant.
b The penalty for a representative payee found to be in violation of paragraph a of this section is a fine, imprisonment for not more than 5 years, or both.
c If the agency determines that a representative payee has misused any payments as described in paragraph a of this section, the agency will promptly revoke the certification for payment of benefits to the representative payee, and will make payment to an alternative representative payee or, if the interest of the annuitant would be served thereby, to the annuitant.
d The agency will make the annuitant whole by repaying any annuity that was misused by the representative payee once the misused benefits have been repaid to the agency by the representative payee.

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