TN 15 (10-24)

GN 03305.005 Who May Consent

The access provisions of the Privacy Act (5 USC § 552a) provide the legal authority for disclosing the personal information in our records with consent. Only the following persons may consent to disclose Social Security Administration (SSA) records information.

NOTE: 

The agency will not process consents in any of the situations below if the information sought was compiled in reasonable anticipation of a civil action or proceeding, or if the information originates from a system of records that is exempt from access under 5 U.S.C. § 552a(d). See 20 C.F.R. § 401.85 for list of exempt systems of records; see also GN 03305.002. In addition, the agency will not process consents when the information sought is not about the individual who has consented (or for whom a parent or legal guardian has consented on behalf of).

A. Consent by competent adults

Generally, the individual who is the subject of the record and a competent adult may give us written consent to disclose information about themselves to a third party.

Written consent can be provided on paper, so long as it contains the individual’s valid signature and meets the consent requirements listed in GN 03305.003. See GN 03305.001C for more information. We will only accept electronic signatures for the purpose of Privacy Act consents on the Form SSA-3288-OP1 submitted through our website, www.ssa.gov/privacy.

B. Consent by legal guardians for incompetent adults

We only accept written paper consents signed by legal guardians on behalf of an adult who is declared to be legally incompetent, with acceptable proof of legal guardianship. Paper consents require a “pen and ink” or “wet” signature, and must meet the consent requirements listed in GN 03305.003. Currently, we do not accept electronic consents to disclose records submitted on behalf of incompetent adults.

1. Legal guardian

a. Proof of legal guardianship

If a document showing a court finding of incompetence exists for the individual who is the subject of a record, the legal guardian may sign a written paper consent document for disclosure only when acting on behalf of the individual and not in the legal guardian’s own interest. Proof of the guardianship appointment (a copy of the court order appointing the guardian) must already exist in our records or accompany the paper consent document. For more information about guardianship, see GN 00502.139 and GN 00502.300.

NOTE: 

Guardian ad litems are not legal guardians and cannot consent except in rare circumstances.

b. Determining the “on behalf of” standard

Consider the intended use of the requested information when determining whether the guardian is acting on behalf of the individual. Use these examples only as guidance for determining if a guardian is acting on behalf of the individual:

  1. 1. 

    A legal guardian for an adult with a developmental disability signs the SSA-3288 on that individual's behalf. The paper consent authorizes SSA to disclose medical information in the individual’s record to his residential director to assist in providing additional services. We determined that the purpose of the disclosure is on behalf of this individual and the agency should honor it; or

  2. 2. 

    An adult child, who is legal guardian for their parent, signs the SSA-3288 on their parent's behalf. Documentation indicates the adult child is only legal guardian “of the person” and not of their parent’s estate or financial affairs. The consent authorizes SSA to disclose information about the parent’s benefits to the adult child’s bank. We determined that the purpose of the disclosure is not on behalf of their parent and the agency should not honor it.

2. Incompetent adult

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.

C. Consent by parent or legal guardian for minor children

The word “parent” used throughout this section refers only to the birth or adoptive parent of a minor child.

A parent or legal guardian, acting on behalf of a minor child, may consent to disclose only the minor child’s non-medical records if the conditions listed in GN 03305.005C.1.a. and GN 03305.005C.1.b. in this section are met. A parent or legal guardian cannot consent to disclose a minor child’s medical records, even if acting on behalf of the minor child. We only accept written paper consent on behalf of a minor child. Consent documents must meet the consent requirements listed in GN 03305.003. We currently do not accept electronic consent to disclose records on behalf of a minor child.

1. Proof of relationship and on behalf of the minor child standards

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.

2. Proof of relationship not in our records or on behalf of the minor child standard not met

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.

3. Non-medical records

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.

4. Medical records

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.

D. Consent by a minor child

A minor child may provide written paper consent to disclose their own medical and non-medical records, at any time and for any reason, if the reviewing SSA employee is reasonably certain that the child is capable of making a rational decision to consent to the disclosure. It may be necessary for the servicing FO to interview the child or the child’s parent(s) or legal guardian to arrive at this conclusion. The reviewing SSA employee should make the decision to accept a child’s consent based on their own judgment that the child is capable of providing informed consent. This means the child fully understands what they are requesting us to disclose.

Use age 12 as a baseline for determining when a child is old enough to make such a decision. Consider these types of disclosures on a case-by-case basis to protect the rights of the child. A child under 12 years old may be mature enough to provide consent while a child over 12 may not be able to provide consent. If it appears the child cannot provide informed consent, process the request under the guidelines of the FOIA. For FOIA processing instructions, see GN 03350.005J.

E. Dual relationships

A third party may have more than one type of relationship with an individual that would permit disclosure when acting on behalf of the individual. For example, an appointed representative may also be an individual’s legal guardian, or a stepparent may also be a legal guardian of a minor. However, only in the situations in GN 03305.005B and GN 03305.005C in this section may a third party sign a consent.


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GN 03305.005 - Who May Consent - 10/08/2024
Batch run: 10/08/2024
Rev:10/08/2024