20 CFR 404.1607
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:
Ga. Code Ann., § 23-2301 provides:
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 However,t he Georgia law on paupers quoted above has not been specifically repealed and Ga.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:
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:
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:
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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