security beneficiary, brought a mandamus action to compel the Secretary to pay him benefits on behalf of the beneficiary. The Secretary contended that the selection of a payee for social security benefits was by law a discretionary act (Wilbur v. U.S., 281 U.S. 206, 218 (1930)) not subject to judicial review under the Social Security Act (Hobby v. Hodges, 215 F.2d 754 (10 Cir., 1954)) and that a mandamus action could not properly be brought to compel the Secretary to exercise his discretion in a particular way (Gianforti v. Ribicoff, 200 F. Supp. 451, 452 (W.D. N.Y., 1961)). On July 3, 1968, United States District Judge H. F. Green granted the Secretary's motion to dismiss the case. There is also the (unreported) case of Fishbein v. Folsom, Civil No. 213-58 U.S.D.C., D. N.J., June 25, 1958, where the petitioner, the beneficiary's father, based his suit against the Secretary on his contention that, in effect, the Secretary abused his discretion in not selecting him, the petitioner, as representative payee for his child's benefits. The Secretary contended, as he did later in Dostert, cited supra, that the act was a discretionary one not subject to judicial review. On June 25, 1968, United States District Judge Thomas F. Meaney granted the Secretary's motion for summary judgment and dismissed the plaintiff's complaint. Cf. also Chernock v. Gardner, 360 F.2d 257, 259 (3 Cir., 1966) and Swotes v. Gardner, 392 F.2d 428 (3 Cir., 1968). The Social Security Administration does give consideration to the application of a legal guardian to be payee of a social security beneficiary. Where, however, the beneficiary is a minor child under legal guardianship, the guardian must generally demonstrate an active, continuing concern for the child's well-being beyond merely furnishing his basic economic needs from the estate, in order to be selected as a payee for social security benefits. This relationship would generally envisage regular personal contacts with the child. For this reason, conservators or guardians whose concern is mainly fiscal or guardians who handle the affairs of numerous wards are generally not considered the most desirable payees. The primary criterion for selection of a payee is whether the payee-applicant will have an active, informed, continuing and personal concern for the beneficiary. This standard is applied to legal guardians as well as to other payee-applicants. Accordingly, it is held, the selection of a payee to receive social security benefits on behalf of a minor child or incapable adult is a discretionary exercise of authority reserved to the Secretary of Health, Education, and Welfare by section 205 (j) of the Social Security Act. SECTION 205 (j).-REPRESENTATIVE PAYEE-USE OF BENEFITS PARENT OF ILLEGITIMATE CHILD AS "LEGALLY DEPENDENT PARENT" 20 CFR 404.1607 SSR 68-33 A representative payee receiving disability insurance benefits on behalf of her illegitimate son who is a patient in a Veterans' Administration hospital, seeks to spend part of those benefits for her personal needs. Under applicable State law, illegitimate children are liable for the support of their needy parents, if they have the means of providing it. Held such expenditure is proper if the mother is in need, so long as the beneficiary's current needs are being met, since it is for the support of a "legally dependent parent" of the beneficiary within the meaning of section 404.1607 of Regulations No. 4 of the Social Security Administration. B was named representative payee for J, her illegitimate son, pursuant to section 205 (j) of the Social Security Act. They are both residents of Louisiana. J is mentally incompetent. His personal needs are being reasonably met, since he receives a Veterans' Administration pension and is a patient in a Veterans' Administration hospital. B seeks to spend part of the disability insurance benefits she is receiving on J's behalf for her personal needs. 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 expended 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, section 404.1607 of the Social Security Adminis tration 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 dependnt child or a legally dependent parent of the beneficiary. Whether B is a legally dependent parent depends on applicable State law, in this case that of Louisiana. Article 240 of the Louisiana Civil Code provides that: Fathers and mothers owe alimony to their illegitimate children, when they are in need; Illegitimate children owe likewise alimony to their father and mother, if they are in need, and if they themselves have the means of providing it. The question to be resolved, therefore, is whether by reason of this provision of Louisiana law the parent of an illegitimate child may be considered a "legally dependent parent" within the meaning of that phrase in section 404.1607 of the Social Security Administration regulations cited above. Under Louisiana law an illegitimate child is legally obligated to support his needy parents, as long as he has the means of providing such support. Accordingly, it is held that B, if she is in need, is a "legally dependent parent" for whose support a part of J's benefits may properly be expended under the cited regulations, so long as his current maintenance needs are being met. SECTION 205 (j).—REPRESENTATIVE PAYEE-USE OF CHILD'S BENEFITS FOR SUPPORT OF DESTITUTE PARENT 20 CFR 404.1607 SSR 68-59 A representative payee residing in Georgia received disability insurance benefits on behalf of her adult son and spent part of the benefits for her own support. Under Georgia law, a child is liable for the support of his destitute parents under certain circumstances if he has the means of providing it. Held, such expenditure was proper if the mother is destitute, so long as the beneficiary's current needs were being met, since it was for the support of a "legally dependent parent" of the beneficiary within the meaning of that phrase in § 404.1607 of Regulations No. 4 of the Social Security Administration. 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: The father, mother or child of any pauper contemplated by the preceding section, if sufficiently able, shall support such pauper. Any county having provided for such pauper upon the failure of such relatives to do so may sue such relative of full age and recover for the provisions so furnished. Ga. Code Ann., § 23-2301 provides: Who are paupers-No person shall be entitled to the benefits of the provision for the poor who is able to maintain himself or herself by labor or who has sufficient means. In cases where females are unable to maintain themselves and the helpless children they may have, they may be aided to the extent required in the furnishing of food, clothing, or shelter. 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, the 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: Where the guardian of a World-War veteran adjudged incompetent received from the U.S. Veterans' Administration $100 per month as compensation for the ward, this amount being based on the fact that his mother was dependent on him for support, and that without such dependent the amount would be $15 per month, a decree awarding to his mother (a widow of sixty-eight years and without other means of support and maintenance) $75 per month from the $100, as long as it should be so received and during her dependency, was legal. See, Davenport v. Davenport, 111 S.E. 2d 57, 59 (Ga. 1959). 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 this section did not afford the parent a right of action against the child for support. The court held, however, that: A destitute mother being a pauper within the meaning of § 23-2302, and having a son of sufficient ability to support her, has a right to such support from the son. 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: However, we do not pass on the question as to whether or not the duty 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. SECTION 205 (j).—REPRESENTATIVE PAYEE-USE OF BENEFITSLEGAL DEPENDENCY STATUS OF ADULT SON OR DAUGHTER 20 CFR 404.1607 SSR 70-32 An adult child, residing in the State of Nevada and receiving retirement insurance benefits on his mother's behalf as her representative payee while she is institutionalized, has used part of those benefits for his own support, alleging he is disabled and dependent on her. Under Nevada law, a parent is not liable for the support of an adult child, unless that child is under a mental infirmity of such severity that he is unable to support himself, or is an applicant for, or recipient of, public assistance. Held, such expenditure by the payee for his own support is not proper since he is not a "legally dependent child" of the beneficiary within the meaning of section 404.1607 of Regulations No. 4 of the Social Security Administration. A, a retirement insurance beneficiary, has been hospitalized since early 1965 at which time she became incapable of handling her own social security benefits. Her adult child, L, was named representative payee to receive A's benefits in accordance with the provisions of section 205 (j) of the Social Security Act. L has used a portion of A's benefits for his own support, asserting that he is her dependent child with no income of his own, has not worked since 1955, and is disabled. Section 205 (j) of the Act provides, as pertinent here, that when it appears to the Secretary that the interest of the beneficiary would be served thereby, certification of payment may be made either for direct payment to the 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. Section 404.1607 of the Social Security Administration Regulations No. 4 (20 CFR 404.1607) provides that where current maintenance needs of the beneficiary are being reasonably met, part of the beneficiary's payments may be used for the support of the legally dependent spouse, legally dependent child. or a legally dependent parent of the beneficiary. |