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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Social Security
Satisfied Customers: 91829
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Disabled son cannot pay legal fees.My son has been on social

Customer Question

Disabled son cannot pay legal fees.

My son has been on social security disability since he was about 17, he is now 35. He is totally disabled and has never worked. Last year SS decided to review his case and told him he was no longer disabled. His disability is schizophrenia. In the past several years he had refused to take medication and see any doctors. When we go the letter from SS saying that they were stopping his benefits, I contacted a lawyer and was told that it was probably due to the fact that he had not been to a doctor in so long and that they had nothing to base his ongoing disability on. I was also told that they would charge a flat fee of $500, but during that same conversation the attorney said that depending on how much they had to do, whether or not they had to go to an actual hearing, and on my son's finances; they might be able to reduce or waive the fee. About a year later he finally got a letter in the mail from SS saying that they were not going to stop his benefits. He applied to SS to have them ask the lawyer to waive their fees, but we just received a letter saying that they will not do that and that the fee is fair. He just received a letter from the attorney asking for full payment within 10 days. His ONLY source of income is SS which is $826 per month (and $140 per month in food stamps). He does not have $500. What can to do to force him to pay? Can they get SS to take the money from his check? He owns nothing, has no possessions, and no other sources of income. What are his alternatives?
Submitted: 1 year ago.
Category: Social Security
Expert:  Megan C replied 1 year ago.

MyVirtualCPA :

I realize you have a question about social security. My goal is to help you better understand your options.

MyVirtualCPA :

I'm so sorry to hear about your situation.

MyVirtualCPA :

The attorney really has no recourse on your son.

MyVirtualCPA :

They cannot garnish his social security check.

MyVirtualCPA :

If he owns no assets, there is nothing to seize. The cash in his bank account comes from social security so they can't take that, either

MyVirtualCPA :

They can take him to court and get a judgment against him, but that's about it. There's nothing to collect from.

MyVirtualCPA :

http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/426/~/garnishing-social-security-benefits-due-to-a-debt

Customer: replied 1 year ago.
I kind of thought that was the case. However; here is what I am concerned about - as I said his disability is schizophrenia and getting the first letter from SS and the year up until they told him they were not stopping his benefits was very upsetting for him and caused many set backs. I'm very concerned on what kind of effect it would have on him if they try to take him to court. He does not do well in public and has problems with understanding how things work. For instance, when he found out that SS was trying to stop his checks he wanted to sue the government. Is there anything I could do, short of simply explaining this to the attorney? Is it possible that if I explain this to them that they could voluntarily choose to waive the fee and drop it?
Expert:  Megan C replied 1 year ago.

I'm sorry about your troubles. It all depends on how aggressive that the attorney is. They should realize that there is no way they are going to collect their fee from this individual, and just drop it instead of investing MORE in this through court costs and time spent going to court. However, it is their right to take him to court. I realize that would be unsettling, and I hope that it doesn't come down to that.

Have you thought of working out a payment plan? Perhaps $20 a month or so until the balance is paid in full?

However, you could explain this to the attorney and leave it up to them whether or not they pursue. They *should* realize that he cannot pay and that they do not have recourse and simply write off the debt.

Thanks!

 

Please take a moment to rate my response "excellent" so that I may receive credit for assisting you today.

Customer: replied 1 year ago.
I just spoke with the attorney and was told that SS CAN take the money directly out of his check if he does not pay it. Do you have any actual legal experience? I just noticed that you are not a lawyer, but an accountant.
Expert:  dylatess replied 1 year ago.

Hello and and thank you for your question. For over 34 years, I have answered questions just like yours. And I look forward to assisting you.

The attorney is not being honest with your son as the fee owing is between your son and the attorney. Likewise, the SS cannot be ordered to withhold the money from your sons's check. Likewise, the attorney would have to sue your son. But even if he gets a judgment, your son is judgment proof and his SS check that he receives his exempt form attachment.

Customer: replied 1 year ago.
Along with the letter from the lawyer, they included a letter from SS. It says:

"We are writing about your request to review the fee of $500 we said "xxAttorneyNamexx" can charge for her work on your claim."

Then it lists:

"Applicable Provisions of the Law and Regulation

Sections 206 (a) and 1631 (d) (2) (A) of the Social Security Act, as amended [42 U.S.C. 406(a) and 1381 (d) (2) (A)] allow us to authorize a representative's fee whenever services are performed before the Social Security Administration. As requested, we have now conducted an administrative review of the previously authorized fee. Someone who did not make the first decision reviewed the fee amount."

It then lists the reasons why they made the decision, and then it says:

"Section(NNN) NNN-NNNNd)(1) of Regulations No. 4 of the Social Security Administration does not provide any further appeal rights in this matter."

Are you absolutely positive that they cannot withhold this money from his check?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am afraid that in general the above answer was correct in that normally SS benefits cannot be garnished. However, there is an exception, which was missed, and that is attorney's fees and costs for any SS appeals or hearings where the recipient is represented and the SS law guarantees payment to the representative/attorney for representation in an SS hearing, the lawyer was not lying to you about that I am afraid.

This is what even the SSA site states about your issue:

When the SSA or a Federal court authorizes a representative's fee based on an approved fee agreement or a fee petition, SSA will withhold up to 25 percent of the claimant's title II and/or title XVI past-due benefits for payment of all or part of the authorized fee, if the following criteria are met:

  • At least one of the claimant's representatives is an attorney or a non-attorney whom SSA has determined is eligible for direct payment of fees.

  • The claimant is entitled to past-due benefits under title II and/or title XVI.

  • The attorney or non-attorney who is otherwise eligible to receive direct payment has not waived his or her fee or waived the right to direct payment.

  • An attorney or non-attorney whom the claimant appoints after December 31, 2006 to represent him or her before SSA, or an attorney for whom a Federal court approves a fee after December 31, 2006, has registered to receive direct payment by taking two steps:

    1. Submitting, one time, a completed Form SSA-1699, Registration of Individuals and Staff for Appointed Representative Services.

    2. Submitting, in connection with the specific claim(s), a completed Form SSA-1695, Identifying Information for Possible Direct Payment of Authorized Fees.

When SSA makes direct fee payment, the law requires SSA to charge an assessment to cover administrative costs. SSA deducts this service charge from the amount payable to the representative. The representative cannot charge or collect this expense from the claimant.

Beginning with direct payments SSA makes to representatives on or after September 1, 2004, the service charge is capped at the lower of either a flat rate dollar amount or 6.3 percent of the amount of the fee payable from past-due benefits. The flat rate dollar amount cap is adjusted periodically based on the cost of living. For direct payments made to representatives on or after December 1, 2012, the service charge is capped at a flat rate dollar amount of $88.

 

Thus, I am sorry to state that since your son agreed to representation with this attorney, if SSA deems the fee to fit the above criteria I am afraid they will deduct it to pay the attorney in accordance with the SSA rules.

 


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