The following examples are provided to help illustrate the correct policy application:
Mary Smith, a woman whom we have found disabled under title II and allowed monthly disability benefits, hires an attorney, Ms. Roberts, to establish a trust with $10,000 in assets. We do not need to authorize Ms. Roberts’ fee for the services provided to establish the trust.
Explanation: An attorney may establish a trust for an individual who is already receiving benefits without the need of our authorization of the fee he or she seeks, so long as the trust was not established to protect continuation of SSI eligibility.
Sometime later, Ms. Smith applies for SSI. She also asks Ms. Roberts to revise her trust because she has changed her name. The attorney can again collect a fee for the services provided on the trust due to the name change without our authorization.
A month later, we notify Ms. Roberts that the trust language needs to be revised again, because as drafted it does not meet our requirements for exception to resource counting. She discusses the issue with the claims representative (CR), amends the trust, and submits the amended trust to the agency. The services related to amending the trust and communication with the agency are performed in direct connection with Ms. Smith's pending SSI claim, and fees for those services require our authorization.
Explanation: If a representative assists a claimant or recipient to alter an established trust for reasons such as a name change or the death of a parent, we do not need to authorize the fee because the legal service is not performed in connection with a pending claim or future claim and the parties have not submitted a fee agreement or a fee petition. However, the second transaction affects whether the assets in Ms. Smith’s trust are countable resources for SSI purposes, and therefore her potential eligibility for benefits, so we must authorize the fee the representative may seek for the preparation of documents or conducting business with us.
Clara Waters, a grandmother, establishes a trust for Rainbow, her granddaughter through Mr. Johnson, an attorney. Generally, we would not need to authorize Mr. Johnson’s fee, so long as the trust was not established for the purpose of affecting his clients’ eligibility for benefits.
Explanation: An attorney may establish a trust for a minor child for many reasons. If a trust is prepared in order to affect someone’s eligibility for benefits, we must authorize the representative’s fee for preparation of the trust. However, if a trust is prepared for a reason unrelated to a claim for benefits, we may not need to authorize the fee charged for preparing the trust. Depending on the information in a claims file, we may need to obtain an explanation from the representative or claimant if there is a question about the purpose of the trust, or about why it was established. If a trust is prepared not in connection with a claim, but the parents later apply for benefits and enlist the assistance of an appointed representative (the same attorney or someone else) to prepare or provide information to us, we would authorize fees for only those services provided in connection with a matter before us.
Frank Harris suffers from a terminal illness and files for title II disability. While Mr. Harris’ claim is pending, he hires attorney Lisa Park to prepare adoption papers to adopt his 14-year old stepdaughter Lillian, in order to establish her right to inherit from his estate. Ms. Park drafts the documents and charges Mr. Harris a fee for this service. We do not need to authorize the fee Ms. Park is charging.
Explanation: Although Mr. Harris has a pending claim before us, the attorney assisted him with preparing adoption papers, a specialized legal service that is not in connection with the matter pending before us (Mr. Harris’ disability claim). Therefore, we do not need to authorize the attorney’s fee.
Later, Mr. Harris also appoints Joe O'Connor, a non-attorney representative, to help him appeal the determination on his title II claim. Mr. O’Connor meets with Mr. Harris and they file an online appeal. Mr. O’Connor obtains and submits medical evidence related to his client’s disability and advises Mr. Harris that Lillian is entitled to child benefits. We consider Mr. O'Connor the appointed representative for Lillian, the auxiliary beneficiary, and we must authorize any fee Mr. O'Connor intends to charge and collect from either Lillian or her father for services provided to pursue eligibility for benefits.
Explanation: Mr. O'Connor's assistance was provided in connection with the title II claim.
Pete Brown discovers, after we denied his application for title II disability benefits, that two years of self-employment income is not posted to his earnings record. He hires tax attorney Ana Garcia to help him prepare and file self-employment tax returns and represent him before the Internal Revenue Service. We do not need to authorize a fee for Ms. Garcia's services.
Explanation: Ms. Garcia’s services are related to filing taxes with and appearing before the IRS and are not rendered in connection with the title II disability claim.
Dissatisfied with the denial of his title II claim, Mr. Brown requests a hearing before an administrative law judge (ALJ) and appoints attorney Lee Johnson to represent him. Mr. Johnson promptly files a HA-501 (Request for a Hearing) along with medical evidence that he considers material to the disability claim. The hearing is scheduled, and he appears before the ALJ to present Mr. Brown’s case. We must authorize any fee Mr. Johnson seeks to charge or collect for his services.
Explanation: Mr. Johnson has provided services in direct connection with a title II claim.