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

 

Sometimes Social Security Benefits Can be Garnished

Are you a grandparent who lovingly agreed to co-sign your grandchild’s  college loans? Do you have unpaid alimony obligations under an old court order? You may have been under the impression since you retired that “Social Security Benefits are secure against all creditors,” and that they cannot be attached to satisfy a judgment. This is certainly the general rule. 42 USC 407(a) and 20 CFR 404.1821. However,outstanding alimony (and child support) obligations have always been an exception to the general rule. Unpaid federal student loans are also an exception to this general rule.

As of 1996, with respect to suits by the federal government that resulted in a judgment on unpaid higher education loans, the Debt Collection Improvement Act authorized Social Security benefits to be “offset,” (meaning, garnished) “[n]otwithstanding [§407],” 31 U.S.C. § 3716(c)(3)(A)(i).  There is no statute of limitations. The US Supreme Court confirmed the government’s power to do so in Lockart v US, 546 U.S. 142 (2005) http://www.law.cornell.edu/supct/html/04-881.ZS.html Lockart involved a debt that was 10 years old.

Up to 15% of your Social Security payment can be garnished by the federal government if student loans are in default. The first $750/month of your SS benefit cannot be touched, though.  If you are receiving Social Security Disability you can apply for the Total and Permanent Disability Waiver. See http://www.disabilitydischarge.com/Home/

I like to talk of planning for a good old age. You need to think ahead. With a nod to Samuel Taylor Coleridge,** these debts will be the proverbial “albatross around your neck” which, while easily ignored when you are in your working years, can become burdensome once you retire. If the loans are already in place, speak with your lawyer  and see if you can create an enforceable obligation between the grandchild and you to try to protect yourself in the event of their default. If your family member approaches you, proceed with extreme caution, taking into account your own income, assets, and future ability to pay in the event of their default.

** The Rime of the Ancient Mariner, see  http://www.online-literature.com/coleridge/646/

 

Call us for an elder care consultation,  to discuss planning for a good old age … 732-382-6070