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

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 CRF 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:

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, * * * *

Section 204. Temporary Orders.

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.

Section 205. Order for payment; probation; recognizance.

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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