SSR 68-59: SECTION 205(j). -- REPRESENTATIVE PAYEE -- USE OF CHILD'S BENEFITS FOR SUPPORT OF DESTITUTE PARENT

20 CFR 404.1607

SSR 68-59

A representative payee residing in Georgia received disability insurance benefits on behalf of her adult son and spent part of the benefits for her own support. Under Georgia law, a child is liable for the support of his destitute parents under certain circumstances if he has the means of providing it; Held, such expenditure was proper if the mother is destitute, so long as the beneficiary's current needs were being met, since it was for the support of a "legally dependent parent" of the beneficiary within the meaning of that phrase in § 404.1607 of Regulations No. 4 of the Social Security Administration.

M, a widow, was named representative payee for her adult son, C, a childhood disability beneficiary, pursuant to section 205(i) of the Social Security Act, as amended and began receiving benefits for him in February 1965. At that time C was in a mental hospital where he had been for 9 years. A payee accounting completed in January 1966, indicated that M, having first expended part of the benefits for C's personal needs, maintenance costs and insurance, also used $270.52 for her own support.

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 beneficiary or for his use and benefit to a relative or some other person. Payments are considered for the use and benefit of the beneficiary when, among other purposes, they are used for the support of certain persons whom the beneficiary is legally obligated to support. Thus § 404.1607 of the Social Security Administration Regulations No. 4 (20 CFR 404.1607) provides that where current maintenance needs of a beneficiary are being reasonably met, part of the beneficiary's payments may be used for the support of the legally dependent spouse, a legally dependent child or a legally dependent parent of the beneficiary.

The question to be resolved here, therefore, is whether M may be considered a "legally dependent parent" within the meaning of 404.1607 of the Social Security Administration Regulations cited above.

Whether C's mother is a legally dependent parent depends upon applicable State law, in the instant case that of Georgia. Under Georgia law an adult child may in certain circumstances be legally liable for the support of his parent. As early as 1863 the law provided that parents and children of paupers are bound to support them. Ga. Code Ann., § 23-2302 provides:

The father, mother or child of any pauper contemplated by the preceding section, if sufficiently able, shall support such pauper. Any county having provided for such pauper upon the failure of such relatives to do so may sue such relative of full age and recover for the provisions so furnished.

Ga. Code Ann., § 23-2301 provides:

Who are paupers -- No person shall be entitled to the benefit of the provision for the poor who is able to maintain himself or herself by labor or who has sufficient means. In cases where females are unable to maintain themselves and the helpless children they may have, they may be aided to the extent required in the furnishing of food, clothing, or shelter.

Title 99 of the Georgia Code on Social Welfare, which has displaced most of the county poor laws in the State, and which contains the current Public Assistance Act, does not presently contain any specific provision relating to the duty of adult children to support aged or infirm parents; nor is there provision for recovery of assistance payments from financially able children. However,t he Georgia law on paupers quoted above has not been specifically repealed and Ga. Code Ann., § 23-2302, relating to paupers remains in effect.

In Citizens and Southern National Bank v. Cook, 185 S.E. 318 (Ga. 1936) in which plaintiff relied upon Ga. Code Ann., § 23-2302, the court held:

Where the guardian of a World-War veteran adjudged incompetent received from the U.S. Veterans' Administration $100 per month as compensation for the ward, this amount being based on the fact that his mother was dependent on him for support, and that without such dependent the amount would be $15 per month, a decree awarding to his mother (a widow of sixty-eight years and without other means of support and maintenance) $75 per month for the $100, as long as it should be so received and during her dependency, was legal. See, Davenport v. Davenport, 111 S.E.2d 57, 59 (Ga. 1959).

In the Cook case (185 S.E. at p. 319) the defendant had contended that Ga. Code Ann., § 23-2302, was in derogation of the common law, because at common law a child was not liable for the support of a parent. The defendant contended that the liability set out in this section could only be enforced in the mode and under the circumstances pointed out by that section, that is, by a county when it had furnished provisions for the support of the parent. Defendant further, contended that his section did not afford the parent a right of action against the child for support. The court held, however, that:

. . . A destitute mother being a pauper within the meaning of § 23-2302, and having a son of sufficient ability to support her, has a right to such support from the son.

In Davenport v. Davenport, 111 S.E. 2d 57, 59 (Ga. 1959), the Georgia Supreme Court held that a suit for support brought by a wife residing in Fulton County against her son and daughter residing in the same county, and against her husband and another daughter residing in Polk County, Georgia, was properly dismissed (on jurisdictional grounds). The wife alleged that she was destitute and likely to become a charge on the county and that all of the defendants had ample means to furnish her support but had refused to do so. Her suit was brought under Ga. Code Ann., § 23-2302. The Supreme Court of Georgia held that when a married woman has a husband financially able to support her, the husband is primarily liable for her support under Ga. Code Ann., § 53-510. The court further held that since the wife alleged a legal right to support from her husband, the petition failed to show that she had any legal right of support from her children. The court further stated:

However, we do not pass on the question as to whether or not the duty of supporting indigent parents which the law declares to be in adult children with sufficient means * * * might be enforced in such action as the present one, should it be made to appear that the duty of the husband to support the wife cannot be enforced.

Under Georgia law, an adult child may be legally obligated to support his or her indigent parent where the adult child has sufficient income and the parents is destitute; however, such support cannot be enforced against the adult child where a female parent has a husband who has the duty and ability to support her.

Accordingly it is held that M, if destitute, is a legally dependent partent for whose support part of C's benefits may properly be expended under the cited regulations so long as his current maintenance needs are being met.

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