An adult who is declared to be legally incompetent may be able to consent to the disclosure of their own records. We will honor the written paper consent of an adult who is declared to be legally incompetent when both of the following conditions exist:

1. a. 

   The legal guardian refuses to consent; and

2. b. 

   The interviewing SSA representative is reasonably certain that the individual is capable of making a rational decision concerning the particular disclosure.

The interviewing SSA representative must be able to establish that the person or entity to whom we would disclose records, based on the individual’s consent, will use the information on behalf of the individual. If it appears that the disclosure will be harmful to the individual, the field office (FO) manager (or other official) may want to question the individual's capability of providing “informed consent.” If the adult who is declared to be legally incompetent does not seem capable of making a rational decision concerning the disclosure, send the request to Office of Privacy Disclosure (OPD) for processing under the guidelines of the Freedom of Information Act (FOIA). For additional FOIA processing instructions, see GN 03350.005J. For more information about legal incompetency, see GN 00502.023.

EXAMPLE: An adult claimant who is declared to be legally incompetent secures an attorney to challenge the determination that they are incompetent and provides a written paper consent for us to disclose relevant claim file information to the claimant's attorney. The claimant’s legal guardian refuses to consent to disclose any information to the attorney. The FO manager interacts with the claimant frequently, believing the disclosure would be on behalf of the claimant and would help to protect the claimant’s right to conduct their own affairs. In this example, the FO manager makes the decision to honor the claimant’s written consent and disclose relevant and necessary information to the claimant's attorney, without the legal guardian’s consent.

Before we can release a minor child’s non-medical records, two conditions must be met:

• •

  we must have a document showing the parent's or legal guardian’s relationship to the minor child (e.g., a birth record showing the parent’s first and last name, a legal court document indicating an adoption, or the court order appointing a legal guardian); and

• •

  we must determine that the parent or legal guardian is acting on behalf of the minor child.

  If the parent's or legal guardian’s request to provide consent meets both conditions, we may release non-medical information on behalf of a minor child.

1. a. 

   Proof of relationship. Usually, proof of relationship such as a birth record showing the parent’s first and last name, a legal court document indicating an adoption, or the court order appointing a legal guardian already exists in our records (on the NUMI, MBR, SSR, MCS, MSSICS) or is presented with the request to disclose the minor child’s records.

   NOTE: 

   Stepparents cannot consent to disclose a minor child’s non-medical records unless they are also the child’s legal guardian; and

2. b. 

   On behalf of the minor child. The parent or legal guardian must be acting on behalf of the minor child. This means the purpose of the parent or legal guardian providing consent for disclosure is in the minor child’s best interest and not their own. A parent or legal guardian who is neither living with, nor has custody of the minor child, may be an indication that the parent or legal guardian is not acting on behalf of the minor child.

   EXAMPLE 1:

   A parent (requester) submits an SSA-3288 requesting us to disclose to their subsidized rental company, the benefit amount that their 11-year-old child receives from the child’s other parent's Social Security disability claim. The child’s Numident record shows the requester as the birth parent. However, the requester is the non-custodial parent. The requester informs us that providing the child’s benefit amount to the rental company qualifies the requester for a reduced rent. Since the requester does not have custody and the child does not reside with the requester, releasing information to the rental company is likely not on behalf of the child. Therefore, we cannot honor the SSA-3288.

   EXAMPLE 2:

   An adoptive parent presents us with a proper written paper consent document requesting release of their adopted child’s benefit information to the Maple County School District where the adoptive parent lives so that the child, who receives a Social Security benefit, may qualify for free lunch and bus tickets. A copy of the legal adoption papers for the child is already in our records. Since the free lunch and bus tickets are for the use and benefit of the child, we can honor the written consent document and release the benefit information to the school.

If proof of relationship does not already exist in our records, or the parent or legal guardian cannot provide that documentation and the request does not appear to be on behalf of the child, do not release any information. Send the request and accompanying documentation to the OPD FOIA control mailbox or fax it to (410) 966-0869.

For information about parental rights, see GN 03340.025A. If the legal guardian is a guardian ad litem, see GN 03305.006B.

A birth or adoptive parent or legal guardian may provide written paper consent to disclose only the non-medical records of a minor child to a third party when they are acting on behalf of the child. If it is clear that the parent or legal guardian is acting on behalf of the child, honor the request and release the information. In all instances, proof of relationship must:

• •

  already exist in our records;

• •

  accompany the request; or

• •

  we must obtain a copy of the proof of relationship before we can disclose any information (GN 03305.005C.1. in this section).

A stepparent may not consent to disclose a minor child’s non-medical records unless they are also the child’s legal guardian (note: we must have proof of relationship) and acting on behalf of the child. For general information about who may not consent to disclose records, see GN 03305.006.

A parent or legal guardian, even when acting on behalf of the minor child, may not provide consent to disclose the child's medical records to a third party (20 CFR 401.100(d)). The Privacy Act permits us to develop special procedures for disclosing medical records.

To protect a minor's medical records, we will not disclose those records to third parties. However, the parent or legal guardian may seek access to the minor child’s medical records by designating a physician or other health professional to receive the medical records. Once the parent or legal guardian receives the medical records from the designated health professional, they may disclose them to another party. For more information about obtaining access to a minor child’s medical records, see GN 03340.035D.