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The Bar Bulletin
Jax Daily Record Thursday, Feb. 6, 202005:10 AM EST

Social Security Disability: A primer for lawyers

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Benefit issues touch many areas of law.
Tracy Tyson Miller

By Tracy Tyson Miller • Social Security Law Committee chair

Social Security Disability benefits fall into two categories: benefits you draw based upon your or another worker’s Social Security taxes (Social Security Disability Insurance benefits or SSDI) and benefits you draw in part due to indigence (Supplemental Security Income or SSI).

It can be difficult to understand the difference between SSDI and SSI because people often refer to their benefits as “disability.”

However, it is important to know which benefit your client is drawing because benefit issues touch on many other areas of law.

For criminal defense attorneys

If your client goes to jail for more than 30 days or is kept in a mental facility for more than 30 days pending determination to stand trial, your client is ineligible to receive either SSDI or SSI benefits.

Advise your client to let The U.S. Social Security Administration know, in writing, that he or she is in a state facility; otherwise, your client runs the risk of an overpayment being assessed.

If a person is incarcerated for 12 months, he or she will have to reapply for benefits after release. Prison liaisons may be able to help incarcerated individuals reapply prior to release. 

For estate planning attorneys

If an estate or trust beneficiary also receives SSI benefits, the receipt of additional sums via an inheritance will jeopardize that individual’s capacity to receive SSI and the Medicaid that accompanies SSI. Consider a Special Needs Trust or ABLE account to preserve eligibility.

If parents express concern about how their disabled child will care for himself after the parent’s death, the adult child may be eligible to receive SSDI or SSI benefits. Disabled minor children with limited household income may be eligible for SSI benefits. 

For personal injury attorneys

If a client is unable to return to work for at least 12 months, SSDI or SSI should be considered.

If SSI benefits are being received or are likely to be approved, any settlement will jeopardize SSI and Medicaid eligibility. There are ways to distribute settlement proceeds, spend down the proceeds or put them into a Special Needs Trust that will avoid losing eligibility for SSI benefits.

For wrongful death attorneys

With wrongful death claims, the spouse, children and possibly the stepchildren of the decedent may be eligible to receive survivor benefits under the Social Security Act.

Benefits are limited by the date a person applies for benefits, so application should be made as soon as possible. 

For family law attorneys

Clients who are close to being married for 10 years may want to consider delaying a divorce until after their 10-year anniversary to protect the eligibility to draw as a divorced spouse.

If a non-custodial parent is drawing SSDI benefits, a child support obligation may be able to be offset by the auxiliary benefits that often are available to the children of disabled individuals.

Unpaid support should be reduced to a judgment. Presenting the judgment to SSA when the debtor begins to draw SSDI or retirement benefits can result in a significant portion of the benefits being sent to the judgment holder.

For worker’s compensation attorneys

Clients need to have access to and keep information about worker’s compensation benefits paid to them as well as their official settlement documents and payout ledgers.

The Social Security Administration cannot process SSDI benefits without these documents, which are used to determine if there will be an offset. Lack of documentation will regularly delay benefit payment for as long as eight months. 

Social Security Disability is a complex area of practice and there is intersection with many areas of law. If anyone has questions about how to proceed in matters described above, any member of the JBA SSD committee would be happy to answer your questions.

Tracy Tyson Miller is a sole practitioner focusing on assisting people seeking Social Security Disability benefits.

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