The Myth About Guardianship And SSI

March 30, 2015

Myth:  You need to have guardianship in order to apply for Supplemental Security Income (SSI) for your disabled child or to be the representative payee.

Generally, you don’t need guardianship in order to apply and be awarded SSI benefits for your special needs child.  Or, to be the representative payee.  More and more parents, however, seem to be under the impression that they do need guardianship.  Why?

Much of the confusion originates with the resource limitation associated with SSI.  The maximum amount of assets your child is allowed is $2,000.  If your child has more than this amount, the money needs to either be spent down or be transferred to a legally acceptable alternative such as a Special Needs Trust.  If your child is age 18 or over and lacks mental capacity, you would need to obtain guardianship of the property in order to transfer your child’s money.

Notice the subtle but important distinction.  Social Security is not requiring you to have guardianship.  In the above example, you need guardianship in order to transfer money so that your child can become eligible for SSI/Medicaid benefits.

Social Security makes the following note in their Representative Payee handbook:  “A payee is appointed to manage Social Security funds only. A payee has no legal authority to manage non-Social Security income or medical matters.”

There could be other reasons that guardianship is required.  Certainly, if you need to continue to make medical decisions for your child once he or she reaches age 18, you will have to petition for guardianship for the legal right to do so.  Guardianship allows you to continue to talk to your child’s health insurance company (HIPPA regulations), converse with your child’s doctors, and make the necessary medical decisions.  If your child is eligible for SSI due to lack of capacity, there is a pretty good chance that you will need guardianship to properly advocate for your child.

You will not need guardianship, however, to be the representative payee for your child’s SSI account.