Cases involving foster care are among the most sensitive the Social Security Administration (SSA) encounters. It is essential that SSA do all it can to protect the rights of children who may not be able to rely on their parents or guardians to do so. It is extremely important that SSA follow all legal requirements, including conducting a complete investigation of the individual or organizational representative payee (payee) applicant, using the payee preference list appropriately to identify when other payee leads should be developed and providing due process to the child’s parent and/or legal guardian (see GN 00502.159B). Foster care agencies have traditionally been among SSA’s most dependable payees; however, their appointment as payee is not automatic . You must decide each case individually and remember to consider other concerned relatives as possible payee choices.
Each case should be decided on its own merits. Your primary concern must be that the person, agency, or organization you select as payee will best serve the interest of the child. In the absence of a parent, be sure to consider whether other concerned relatives are a better payee candidate. SSA has several policies to help you find the best possible payee.
The payee preference list, provided in GN 00502.105A, is a developmental guide designed to help you identify the best potential payee. An agency that has been appointed legal guardian for the child by the court has a much higher standing on the payee preference list than an agency that has not been appointed legal guardian because the relationship between a court appointed legal guardian and child is stronger than merely a custodial relationship. These preferences are flexible. Each payee selection is an individualized decision, and there may be instances when selecting a payee lower on the preference list might be preferable to selecting a foster care agency, even when the foster care agency is the legal guardian. In the case of a parent who is barred from having contact with the child or has had parental rights terminated, do not consider the parent higher than the foster care agency on the preference list. The court decision barring the parent’s contact with the child or terminating parental rights indicates that the parent would NOT better serve the interest of the child and the parent should not be considered a potential payee.
When a child is removed from custody of their parents or other caretaker and the court places the child in the custody of a foster care agency, that agency has legal custody of the child. If the foster care agency places the child into a foster care or group living household, the foster care agency retains legal custody of the child, even though the foster care agency does not have actual physical custody of the child.
While a child might be placed in foster care under a court order, the order does not necessarily make the foster care agency the legal guardian of a child in foster care. The court must specifically name the foster care agency as the legal guardian. You must carefully review the court documents to determine the legal relationship between the child and the foster care agency. Remember, even when the foster care agency is the legal guardian, you are not required to appoint the legal guardian as the payee (GN 00502.139). Appoint the applicant who will best serve the beneficiary.
The court order should specifically identify the State or local jurisdiction as the legal guardian. The State is not automatically the legal guardian.
Reminder : Faxed, mailed, or dropped-off Form SSA-11-BKs (Request to be Selected as Payee) require field office (FO) action. You must follow up with a face-to-face interview unless the payee applicant meets one of the exceptions listed in GN 00502.113B.
Generally, the foster care agency is preferred as payee rather than the foster parent because the foster care agency is legally responsible for the child, not the foster parent.
In instances where the child is placed voluntarily (by the parent) under the supervision of a foster care agency, it may be in the child’s best interests to appoint the child’s parent as payee when the parent shows strong concern. Complete an SSA-788 (or equivalent information) and document the Rep Payee/Bene Relationship “Note Type” on the Make Note Screen (MS 07415.002) in the Electronic Representative Payee System (eRPS) about pertinent custody information received. After documenting the Make Note screen, the SSA-788 may be destroyed. If no eRPS record is established, the SSA-788 and accompanying documents will be maintained by SSA either in an electronic folder (if possible) or in the claims file. You can view documentation from the “Rep Payee/Bene Relationship” Note Type in the Notes section of the Application Summary page, per Application Summary in MS 07409.022, and on the Relationship Details notes, per View Notes in MS 07415.003.
While the foster care agency has custody and may be legally responsible for the child, there may be other concerned relatives who would be better choices as payees. Relatives with close ties to the child might be better able to make more balanced choices regarding use of the child’s benefits.
It is a legal requirement that we provide advance notice about the payee appointment to the proper person(s). The parent(s) (or legal guardian) of a child in foster care must be provided advance notice of the appointment unless their parental rights were terminated by a court. In certain situations, eRPS cannot detect that advance notice is needed; therefore, you must prepare a manual notice using the Document Processing System (DPS) (see GN 00503.100E.2.).
During the payee application, gather and consider all pertinent information including copies of all appropriate court documents. A certified copy is required for a court decision of legal guardianship. Photocopies are acceptable for any other documents.