SS to allow predesignation of future Representative Payee

Congress has passed, and the President has signed,  the “Strengthening Protections for Social Security Beneficiaries Act of 2018”.  This statute makes changes to the Representative Payee system of the Social Security Act.

A Representative Payee is appointed by the Social Security Administration to handle the benefits of a person whom the SSA deems incapable of managing his or her own benefits. Examples are adults under guardianship, minors, and persons who suffer with severe cognitive or physical disabilities. A Representative Payee is like an informal Trustee — s/he is expected to keep the SSA income in a designated account [under the Social Security # of the incapable individual, of course] and spend it only on the SS recipient, unless there is a court order that allows other spending. The SSA sends out an annual report statement to the Representative Payees, who are expected to complete it, sign it under penalty of perjury, and return it to the SSA. Apparently there are insufficient resources to audit and monitor the millions of such reports that are filed each year, so there will be federal grants to state and local auditing entities..

Under Secn. 201,  Social Security or SSI recipients over age 18 can designate “at any time” a person — but not an organization — who they want as their Representative Payee should the SSA determine that such appointment is required. The Social Security Administration must select the designated individual as Rep. Payee with certain exceptions, most notably, if the person had been convicted of any of a wide range of crimes. Even that exclusion can be waived in certain cases involving a designated person who is in a close family relationship to the benefits recipient or in the “best interest” of the benefits recipient. Section 201 amends 42 USC sec. 405 (j)(i) by adding (C) (1) to the end of that subsection.

The Act doesn’t specify the form of document that the person needs to sign when making his or her own designation.  I think that it could be included as a paragraph in their Durable Power of Attorney. A State Guardianship Court could order that the Guardian have preference for appointment as a Representative Payee. Section 201 amends 42 USC sec. 405 (j)(i) by adding (C) (1) to the end of that subsection.

Within 18 months the SSA is required to issue regulations. Among other things, there must be forms provided, and the regulations must specify the information that beneficiaries must provide to SSA about the designated individuals. Also, the SSA will be required to notify beneficiaries who have designations annually with the names of the advance designees. The forms and instructions must be published by December 13, 2019.

Another useful amendment is found in Secn. 102. Under this amendment,  the Spouse or parent need not become Rep Payee for someone whose benefits they handle, if they live in the same household. This should make things more convenient for most cases. Of course, in a very bad situation, there could be a need for someone to intervene on behalf of the vulnerable adult in that household, but such an action can be initiated by any interested party if they become aware of the need for a protective arrangement.

Link to the statute permitting designation of a representative payee in advance is below:

https://www.congress.gov/bill/115th-congress/house-bill/4547/text

The law is effective two years after the date of signing, which will be April 13, 2020.

Pre-designation of a Representative Payee is just one component of a senior care and disability protection plan. Updated estate plan documents, powers of attorney, beneficiary adjustments, and other steps may be appropriate depending on the situation.  Each situation is unique and has its own special concerns.

For legal advice and assistance with elder care and disability planning, call us at ………. 732-382-6070

 

A happy day in Guardianship Court: Restoration

Today I had the great fortune to participate in a case in which a person who has been under guardianship for six years had their capacity restored in full.  This kind of situation doesn’t often happen, but it’s really fabulous.

This case started in 2010 when the parent and sibling came to me in an emergency to report that their loved one who I’ll call “X” had suffered a burst aneurysm and a stroke, and was in a coma in the hospital. The hospital advised that they seek guardianship, as there was no power of attorney or health care proxy in place. We filed the necessary papers, and the parent was appointed Guardian. The “ward” — a former executive with huge responsibilities at a major New Jersey corporation —  required extensive hospitalization, but eventually arose from the coma and was released. “X” had a very slow improvement in high level intellectual ability. Also, “X” had various lower body physical handicaps including partial paralysis and required a lot of hands-on assistance.

The family was utterly devoted, and with each year, “X” got stronger and more of “X’s” intellectual processing returned. At one point, “X” asked us to go back to Court, as “X” wanted to revoke “X’s” prior Will and make a new plan. That was accomplished, with the help of the “ward’s” court-appointed attorney. The Guardian and family continued to assist the “ward” with challenging exercises and tasks to help “bring the brain back.”

Finally, the Guardian contacted me and basically said “we think that “X” is ready to regain control of all decisions about their life. “X” has physical handicaps, but “X” can handle those with amazing specialized equipment which “X” knows how to use, and “X” will ask for help when necessary.” So we filed the necessary Verified Complaint with supportive medical reports, and today, following a hearing, the Judge granted “X” restoration of full capacity.

Pursuant to N.J.S.A. 3B:12-57.g.,  Guardians are required to encourage the ward to participate in decision-making “in order to encourage the ward to act on his/her own behalf whenever s/he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which s/he is in need of guardianship services, to the maximum extent possible.” The incapacitated person has the right to petition the court for modification or termination of the guardianship, R. 4:86-7(a)(6),  and the Guardians have the duty under N.J.S.A. 3B:12-57f(10) to institute such legal actions as the “ward” could institute. How is that done? By filing a formal Verified Complaint and order to Show Cause with the court who has jurisdiction over the guardianship, supported by medical proofs and other relevant evidence.

Needless to say, “X” was grinning from ear to ear to receive the Judgment of restoration. So was the Judge … they rarely have the opportunity to see such a fantastic recovery by a person under guardianship.

Call us for advice on guardianship, conservatorship, power of attorney and elder law …. 732-382-6070

 

 

Protective arrangements may be necessary for individuals impaired due to drug addiction

When one thinks about “guardianship,” one usually thinks about cases involving dementia or severe developmental/intellectual disabilities, or perhaps the residuals of traumatic brain injury. The definition of “incapacitated” is broader than that. In the New Jersey probate code, “incapacitated individual” is defined to include  someone “who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself and manage his affairs.”  What this means is that there may be times that a concerned family member will consider filing for general or limited guardianship to protect the assets and well-being of a person who is a habitual drug abuser. There are many procedural due process protections built into the process of obtaining guardianship, but in life threatening situations there could be the opportunity for emergency limited intervention through the court system. At the point that the individual obtains treatment and regains his/her sobriety and capacity, s/he can return to court to scale back the limitations imposed by the guardianship. meanwhile, s/he can be protected against the hazards caused by the behavior and illness.

A court can find that an individual “lacks the capacity to perform some, but not all, of the tasks necessary to care for himself,” and can appoint a limited guardian with specific authority. The individual may not be functionally capable to arrange for insurance, manage assets, maintain a safe home, or consent to treatment. The individual’s funds may be dissipated due to severe impairment of decision-making and susceptibility to influence by other people with similar problems. The individual may be living in a truly hazardous situation as a result of the addiction. The protective arrangement statute , the guardianship statute and the special medical guardianship statute provide the framework to  enable a concerned person to come to the rescue in these situation.

If you are wrestling with how to provide the protection that you feel is needed for your adult child with drug addiction problems, call us at ….. 732-382-6070