SSR 68-60: SECTION 205(j). -- REPRESENTATIVE PAYEE -- USE OF CONSERVED
BENEFITS FOR SUPPORT OF "LEGALLY DEPENDENT PARENT" OF BENEFICIARY
20 CFR 404.1604, 404.1607
SSR 68-60
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A representative payee in receipt of disability insurance benefits for
the use and benefit of her son, a mental patient in a Veterans'
Administration hospital, has accumulated $7,000 in benefits on her son's
behalf. Under applicable State law, a child is liable for the support of
his destitute parents if he has the means of providing it. Held,
use of part of the conserved benefits for the parent's own support, to the
extent required to meet her ordinary and necessary living expenses is
proper, if she is found to be destitute, so long as the beneficiary's
current and foreseeable needs are being met. Support of a "legally
dependent parent" of the beneficiary is within the purview of section
404.1607 of Regulations No. 4 of the Social Security Administration.
R, residing in Vermont, was named representative payee pursuant to
section 205(j) of the Social Security Act, as amended, for her adult son,
N, a disability insurance beneficiary, also a resident of Vermont. N is a
mental patient at a Veterans' Administration facility, where he will
probably remain for the rest of his life. R has accumulated $7,000 on N's
behalf from the benefits she has been receiving as representative payee
for him and has asked whether the money accumulated on N's behalf or part
of it is available for her own maintenance, in the light of N's
condition.
Section 205(j) of the Act provides that when it appears that the interest
of a beneficiary would be served thereby, certification of payment may be
made either for direct payment to such individual or for his "use and
benefit" to a relative or some other person acting as representative
payee. In interpreting the phrase "use and benefit" in the Act, section
404.1607 of Social Security Regulations No. 4 (20 CFR 404.1607) states, in
pertinent part, that if current maintenance needs of the beneficiary are
being reasonably met, part of said payments may be used for the support of
a legally dependent spouse, child or parent of said beneficiary. (As
defined in section 404.1604 of the Regulations, "current maintenance"
means, in the case of a beneficiary receiving care in an institution, the
customary charge made by the institution to individuals it provides with
care and services like those it provides the beneficiary, as well as
charges made for current and foreseeable needs of the beneficiary which
are not met by the institution.)
Thus, the question to be resolved here is whether R may be considered a
"legally dependent parent" within the meaning of section 404.1607 of the
social security regulations cited above.
Whether a parent in a particular case is legally dependent on his or her
child would depend on State law, in this case the law of Vermont. Title
15, Vermont Statutes Annotated, sections 202, 204, and 205, provide in
pertinent part as follows:
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Section 202. Penalty for desertion or nonsupport. * * * an adult child
possessed of sufficient pecuniary or physical ability to support his
parent, who unreasonably neglects or refuses to provide such support when
the parent is destitute, unable to support himself and resident in this
state, shall be imprisoned at hard labor not more than two years or fined
not more than $300.00 or both. Should a fine be imposed, the court may
order the same to be paid in whole or in part to the * * *, parent, * * *
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Section 204. Temporary Orders.
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At any time before the trial, upon application of the complainant and
upon notice to the respondent, the court, or a judge thereof in vacation,
may enter such temporary order as may seem just providing for
the support * * * of such parents, pendente lite, and may punish for
violation of such order as for contempt.
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Section 205. Order for payment; probation; recognizance.
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Before the trial, with the consent of the respondent, or at the trial on
entry of a plea of guilty, or after conviction, instead of imposing the
penalty hereinbefore provided, or in addition thereto, the court, in its
discretion, having regard to the circumstances and to the financial
ability or earning capacity of the respondent, may make an order which
shall be subject to change by the court form time to time, as
circumstances may require, directing the respondent to pay a certain
sum periodically * * * to a parent or his guardian. Such court may
order the respondent released from custody and placed on probation, upon
his entering into a recognizance, with or without surety, in such sum as
the court, or a judge thereof in vacation, may order and approve. The
condition of the recognizance shall be such that if the respondent shall
make his personal appearance in court whenever ordered so to do and shall
further comply with the terms of such order of support, or of any
subsequent modification thereof, such recognizance shall be void,
otherwise in full force and effect. (Emphasis added.)
The above-quoted section 202 clearly imposes upon an adult child an
obligation to support his parents under the stated conditions and
specifies the possible penalties for failure to fulfill such obligation.
The parent to whom such obligation is owed by virtue of that statute would
be a "legally dependent parent" within the meaning of the cited Social
Security Administration regulations. Accordingly, it is held that
R, if in fact destitute, is a "legally dependent parent" for whose support
a portion of C's benefits may properly be expended under the cited
regulations, so long as C's current maintenance needs are being met. (For
this purpose, support means only that portion of the benefits required for
R's ordinary and necessary living expenses.)
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