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:
-
a.
The legal guardian refuses to consent; and
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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.