You asked us to review whether an order from a local Puerto Rico court that binds
a representative payee to maintain conserved social security funds of an individual
until he/she attains age twenty-one is inconsistent with SSA law. You note that the
beneficiaries who are the subject of the court order receive survivor benefits which
terminate upon the child attaining age eighteen or nineteen. SSA law states that conserved
funds must be returned to SSA once the payee relationship ends so that the Agency
may recertify them to the beneficiary. As such, a court order directing that the payee
retain the benefits after said benefits are terminated violates SSA law. In light
of the apparent conflict between a Puerto Rico court order and SSA law, we conclude
that federal law should trump the court order under the Supremacy Clause of the United
States Constitution and the funds should be returned to SSA so that they may recertify
them to the beneficiary.
You note that during a recent representative payee seminar in Puerto Rico, the Department
of Family ("DOF") inquired as to whether a court order which binds a representative
payee to maintain conserved funds of an individual until they attain age twenty-one
is inconsistent with SSA law which states that conserved funds must be returned to
SSA once the payee no longer serves as payee and benefits are terminated. You also
note that at this time, DOF has not cited to any specific case where these facts have
You indicate that the DOF is an organizational representative payee. You note that
the DOF provides services to children who are removed from their families due to abuse,
neglect, death of parents, etc., and that these children become wards of the Commonwealth.
You also state that the majority of children obtaining representative payee services
from DOF receive survivor benefits.
In addition, you note that the DOF explained that children who received survivors
benefits can remain under their care until they attain age twenty-one even though
their SSA benefits have terminated. You also state that the DOF does not return the
conserved funds to SSA because they are following a court order which instructs them
to maintain the funds until the individual is returned to the family unit or attains
A representative payee acts to receive benefits on behalf of a beneficiary. 20 C.F.R.
§ 404.2001. SSA's regulations set out a number of circumstances when payment will
be made to a representative payee. One instance occurs when a beneficiary is under
the age of eighteen. The regulation states:
Generally, if a beneficiary is under age 18, we will pay benefits to a representative
payee. However, in certain situations, we will make direct payments to a beneficiary
under age who shows the ability to manage the benefits. For example, we make direct
payments to a beneficiary under age 18 if the beneficiary is-
Receiving disability insurance benefits on his or her own Social Security earnings
Serving in the military services; or
Living alone and supporting himself or herself; or
A parent and files for himself or herself and/or his or her child and he or she has
experience in handling his or her own finances; or
Capable of using the benefits to provide for his or her current needs and no qualified
payee is available; or
Within 7 months of attaining age 18 and is initially filing an application for benefits.
20 C.F.R. § 404.2010 (2)(b)(1)-(6).
As discussed above, many of the children for whom DOF provides representative payee
services for, receive social security survivors benefits. Survivors benefits are payable
to a child until he/she attains the age of eighteen or up to age nineteen if the child
is attending school full-time. 20 C.F.R. § 404.352(b).
When an individual is no longer receiving benefits, he or she no longer requires a
representative payee. 20 C.F.R. § 404.2001. When the payee relationship ends, SSA
law provides that a representative payee who has conserved or invested benefit payments
on behalf of a beneficiary shall transfer the funds to SSA. 20 C.F.R. § 404.2060.
At the time the funds and the earned interest are returned to SSA, SSA will recertify
them to the beneficiary. Id.
Here, the DOF explained that children who receive survivors benefits remain under
their care until they attain age twenty-one even though their SSA benefits may have
terminated. The DOF referenced a past court order that required them to retain a child's
conserved funds until he/she attained age twenty-one. If, the court order indicates
that the DOF is responsible for maintaining the child's funds until he or she attains
age twenty-one, a conflict exists between the Commonwealth's court decision and SSA
laws which direct that the payee relationship shall end when the beneficiary's entitlement
is terminated and that conserved benefit funds must be returned to SSA. In cases of
conflict, such as here, the Commonwealth's law must give way. Under the Supremacy
Clause of the United States Constitution, any state law that would interfere with
or is contrary to federal law will not stand. Courts have found implied conflict pre-emption
where it is impossible for a private party to comply with both state and federal requirements
or where state law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress. See Beulah Johnson v. Brian J. Wing, et al., 12 F. Supp. 2d 311, 317 (S.D.N.Y. 1998); see also, Perez v. Campbell, 402 U.S. 637, 651-52 (1971).
In addition, POMS GN 00602.120 instructs that SSA should obtain full information from a payee when a court attempts
to direct the disposition of benefits certified to a representative payee. Thus, SSA
should obtain the specific court order from the DOF that mandates they retain conserved
funds even when a beneficiary is no longer entitled to benefits. Upon receipt of this
information, we can ascertain whether a conflict exists and what remedial action SSA
We believe that a copy of a court order is needed in order to ascertain whether a
true conflict exists between the Commonwealth's court decision and SSA law. If, a
conflict exists between the court order and SSA law, we believe the court order should
give way to SSA law under the Supremacy Clause.
Mary A~ S~
Acting Regional Chief Counsel, Region VII
Assistant Regional Counsel