Elderly woman has not received social insurance allowance for 5 years: A special mechanism is needed

Lao Dong Newspaper has just reported on the case of Mrs. Nguyen Thi Ngat (81 years old, in Hanoi) who has not been able to receive social insurance benefits for 5 years after suffering a stroke in 2021, completely losing her cognitive ability.

The case not only reflects the obstacles in the process of authorizing the receipt of pensions, allowances, and guardianship procedures, but also shows that the legal loophole needs to be filled soon to ensure the rights of social security beneficiaries.

Talking to Lao Dong reporters about this case, Dr., Lawyer Dang Van Cuong - Head of Chinh Phap Law Office (Hanoi Bar Association) said that the social insurance agency's request to have a legal guardian is legally based. However, applying the same procedure to all cases has revealed inadequacies in practice.

According to lawyer Dang Van Cuong, the 2015 Civil Code clearly stipulates that people with civil act incapacity cannot establish and perform civil transactions themselves. Representing them must be done by a legal guardian after having a decision from the Court and completing the procedures for registering guardianship according to regulations.

For social insurance agencies, allowances and pensions are the assets of beneficiaries. If they are paid to people who do not have legal representative status, disputes, lawsuits or compensation liability may arise. Therefore, the requirement to prove representative status is necessary to ensure legal safety.

However, in cases where the beneficiary has completely lost consciousness and has been motionless for many years, prolonging procedures that prevent patients themselves from accessing the money used to take care of themselves is not in line with the goal of ensuring social security. Although the handling method of the social insurance agency is not contrary to current regulations, it has revealed the inadequacies of the legal mechanism," the lawyer assessed.

The gap between regulations and practice

According to Dr. Dang Van Cuong, the case of Mrs. Nguyen Thi Ngat simultaneously reflects two issues: Inadequacies in implementation organization and legal loopholes.

The biggest gap is that the law currently does not design a simplified procedure so that relatives can receive subsidies and pensions in cases where beneficiaries have stroke, coma or complete loss of cognitive ability.

Meanwhile, the procedure for requesting the Court to declare a person civilly incompetent is not always convenient in practice. There are many cases where dossiers are lengthy, the collection of documents and evidence is difficult, or people do not know where to start.

Relatives cannot also make minutes of agreement themselves to appoint someone to take over. Commune-level People's Committees or notaries also do not have the authority to establish the status of representative for the Court. Therefore, if there is no decision from the Court or other legal basis, the social insurance agency will also find it very difficult to have a basis for payment," the lawyer analyzed.

According to him, in the context of building a constructive administration, putting people at the center of service, many procedures need to be reformed in the direction that state agencies proactively support people more instead of letting people prove themselves and collect dossiers themselves in special circumstances.

Proposing competent authorities to soon issue guiding circulars or sub-law documents

Dr. Dang Van Cuong said that receiving monthly allowances and pensions is very different from civil transactions of great value such as buying and selling houses and land, borrowing money or mortgaging assets.

In this case, the recipient only receives the periodic amount to serve treatment, care and ensure living for the beneficiaries themselves.

Therefore, the law can completely design a more flexible mechanism while still controlling risks.

According to the lawyer, it is possible to study regulations in the direction of only needing confirmation from a medical facility about the beneficiary's inability to perceive; documents proving family relationships; minutes of agreement of family members or commitments of the recipient on behalf of the person about using the money for the right purpose. At the same time, the social insurance agency implements a post-inspection and examination mechanism to promptly handle if acts of taking advantage and appropriating property are detected.

If the person assigned to receive it takes advantage of it to appropriate the beneficiary's money, the law has sufficient civil, administrative and criminal sanctions to handle it. Therefore, it is entirely possible to build a simpler procedure while still ensuring strict control," he said.

The lawyer also proposed that competent authorities soon issue guiding circulars or sub-law documents to remove difficulties for the elderly, people with stroke, dementia or complete loss of cognitive ability when carrying out procedures to receive allowances and pensions.

According to Dr. Dang Van Cuong, Vietnam is entering a period of rapid population aging, the number of people with stroke, Alzheimer's, dementia and diseases that cause cognitive loss will increase.

If the law still applies a common process for all civil transactions, there will be many older people'stuck' between legal procedures, while allowances and pensions designed to ensure their lives cannot be used at the most necessary time," the lawyer emphasized.

He believes that it is time to study and improve the law in the direction of taking social security beneficiaries as the center, building a simple and flexible representative mechanism but still ensuring the prevention of abuse and infringement of the rights and property of people with civil act incapacity. This is also an urgent requirement in the context of population aging and building a modern and humane social security system.

Read the original here.