Question: I have a close friend whose husband was convicted of a felony in Ohio. After his 3 and 1/2 year sentence was completed, he moved to South Carolina to live with his parents. A few months ago he was the victim of an assault, which left him unable to work. My friend and he are still legally married, and have a 12-year-old daughter together. She has never received child support or SSDI benefits. My question is, can my friend begin the application process for SSDI herself if he is not mentally capable?
Answer: Social Security does allow an individual who is primarily responsible for caring for a mentally disabled person to file for benefits in some circumstances. But it sounds like your friend, while still married, is not living with or taking care of her husband, so she will not be allowed to file for disability benefits on his behalf. However, your friend’s husband’s parents may be able to file for benefits, if your friend can convince them to.
Social Security policy does encourage disability applicants themselves to apply for benefits and sign the application in most cases. But if a person with a mental disability does not understand the meaning of filing for benefits, or has been adjudged mentally incompetent, the person’s primary caretaker may file an application on the person’s behalf.
In deciding whether the person can understand what it means to file for disability benefits, Social Security will consider whether the person is incapable of reasoning properly, has impaired judgment, or is unable to communicate with others. But if the person is able to agree to have someone else file for benefits, Social Security will find that the person is capable of understanding the meaning of filing for benefits and will require that person to sign the application. This is not to say that your friend’s husband’s parents could not assist him with the application, but your friend’s husband would have to sign the application himself in this situation.
If your friend’s husband’s parents agree to file a disability application on his behalf, they might have to submit a statement to Social Security saying that they are the parents of the disability applicant and they are currently caring for him in their home. Social Security would also send a form to your friend’s husband’s doctor to fill out, asking the doctor whether the disability applicant can understand the meaning of filing for benefits. If the doctor answers no, Social Security will notify the disability applicant that a claim has been filed and allow the applicant 10 days to protest the application.
Keep in mind that whoever files the application will have to have a good deal of knowledge about which doctors the applicant has seen and when, along with their contact information, so that Social Security can request the applicant’s medical records. The person filling out the application should also know the applicant’s diagnoses and prognoses, how the applicant’s diminished mental capacity affects his activities of daily living and makes it impossible for him to work, the mental treatments that have been attempted and the medications that have been prescribed, and whether the applicant is complying with the treatment and taking the medication as instructed.
Finally, know that while Social Security will allow a court-appointed guardian to file an application on someone else’s behalf, a person with a power of attorney cannot file an application on someone else’s behalf.