SSR 68-32: SECTION 205(j). -- REPRESENTATIVE PAYEE -- USE OF CONSERVED FUNDS FOR SUPPORT OF ILLEGITIMATE CHILD

20 CFR 404.1607

SSR 68-32

A state mental institution, as representative payee for a mentally incompetent beneficiary confined therein, sought to use part of the beneficiary's accrued benefits for hospital treatment of the beneficiary's illegitimate child. Under State law, a natural parent is legally liable for the support of his or her minor child born out of wedlock when the child is unable to support himself and is likely to become a public charge. Held, such expenditure was proper, so long as the beneficiary's current and forseeable needs were being met, since it was for the support of a legally dependent child of the beneficiary within the meaning of section 404.1607 of Regulations No. 4 of the Social Security Administration.

C, a female adult disabled child of deceased wage earner, is confined in a State mental hospital, having been adjudicated a mental incompetent. On January 15, 1967, she gave birth to an illegitimate child. The State institution, named as representative payee pursuant to section 205(j) of the Social Security Act, put the baby in a hospital until February 16, 1967, when responsibility for the child was transferred to a welfare agency. The representative payee is being held responsible for the hospital bill in the amount of $719. The payee presently has $500 of conserved funds of the beneficiary and has requested advise as to whether he may use part of it to help pay this hospital bill.

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 a person 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.

Whether C's child is a legally dependent child depends on applicable State law, in this case that of Illinois. Chapter 68, § 52 of Smith-Hurd Illinois Annotated Status defines which persons are legally liable for support of dependents, and in pertinent part states:

(b) A mother is liable for the support of her child or children under 18 years of age or over if such child is unable to maintain himself and is likely to become a public charge, whenever the father of such child or children is dead, cannot be found or is incapable of supporting such child or children, and if she is possessed of sufficient means or able to earn such means, she may be required to pay for the support of such child or children a fair and reasonable sum according to her means, as may be determined by the court having jurisdiction of the mother in a proceeding instituted under this Act.

(c) The natural parents of a child born out of wedlock and the parents by adoption of such a child are severally liable for support of such child in accordance with the applicable laws of this State whenever such child is unable to maintain himself and is likely to become a public charge, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child's father by a court of competent jurisdiction, or he has or shall acknowledge paternity of the child is open court or by a verified written statement.

And further, the 1967 Illinois Public Aid Code § 10-2 states:

. . . The parents are severally liable for the support of any child under age 18, or age 18 or over if the child is unable to maintain himself and is, or is likely to become, a public charge. The term "child" includes a child born out of wedlock. . . .

The question to be resolved, therefore, is whether under those sections of Illinois law the illegitimate child of an adult childhood disability beneficiary may be considered a "legally dependent child" within the meaning of that phrase in section 404.1607 of the Social Security Administration Regulations cited above.

Under Illinois law, a natural parent is legally obligated to support his or her minor child born out of wedlock where the child is likely to become a public charge, regardless of the mental capacity of the parent, as long as the parent has the financial capacity to provide the child's support. Accordingly, it is held that the child of the beneficiary is a "legally dependent child" for whose support conserved benefits may properly be expended within the meaning of the cited regulations, provided the current and reasonably foreseeable maintenance needs of the beneficiary are met.

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