EFFECTIVE/PUBLICATION DATE: 11/09/90
20 CFR 404.2001
A question has been raised as to whether a conservator appointed under State law can compel SSA to pay to him the benefits due a beneficiary who has disappeared and whose present whereabouts are unknown.
The beneficiary was 60 years old when she disappeared on July 27, 1987. She has not been seen by or been in contact with her relatives since the date of her disappearance. There has been no determination by any State or Federal Agency that the beneficiary is dead. The beneficiary's benefit checks dated August 5, 1987, September 3, 1987, October 3, 1987, and November 3, 1987, were cashed subsequent to her disappearance, although it appears that the beneficiary's signature was forged on these benefit checks.
The beneficiary's son was appointed as conservator of the estate and property of the beneficiary on December 7, 1988. By order of the Circuit Court of Escambia County, Florida, he was given full power and authority to take possession of and to hold all property of the missing beneficiary. Benefit payments were suspended with SSA became aware of the beneficiary's disappearance.
The State court order is the son's apparent authority for his belief that he can receive benefits on behalf of his mother. However, the Secretary is not bound by a decision of a State court in a proceeding to which he was not a party, and need not consider the adjudication of such a court if, as in this case, an issue was not genuinely contested before it by parties with opposing interests. SSR 83-37c (C.E. 1981-1985, p. 37) adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); Cain v. Secretary of Health, Education, and Welfare, 377 F.2d 55 (4th Cir. 1967); Cruz v. Gardner. 375 F.2d 453 (7th Cir. 1967), cert. denied, 389 U.S. 886 (1967). Further, subject to exceptions which are not applicable here, section 207 of the Act, 42 U.S.C. 407, specifically provides that the right to receive benefits cannot be assigned or transferred and shall not be subject to any legal process.
The payment of benefits is personal to the beneficiary. The payment of benefits to anyone other than the entitled individual is governed by the representative payee provisions of section 205 of the Act and 20 CFR 404.2001 et seq. Generally, representative payment is appropriate if the beneficiary is not able to manage or direct the management of benefit payments in his or her own interest. 20 CFR 404.2001. There is no authority for making representative payment if the beneficiary has disappeared or is believed to be deceased. If the subject beneficiary is deceased as her son suspects, no benefits are payable on her behalf effective with the month of her death.
Under the circumstances in this case, the Secretary was justified in suspending the beneficiary's benefits until such time as her status or whereabouts have been determined. Accordingly, the beneficiary's son had no legal basis for attempting to compel SSA to pay his mother's benefits to him on her behalf.
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