AFTL Women s Caucus Journal Article November IS FAILURE TO by theredman

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									AFTL Women’s Caucus Journal Article                                                         November 2003


            IS FAILURE TO OFFER A STRUCTURE MALPRACTICE?
                    By Stephanie L. Schneider, Stephanie L. Schneider, P. A., Plantation


  Trial lawyers may face increasing lawsuits for                             The Tip:
failure to advise their clients about structured                It is suggested that the intake report used
settlements and special needs trusts. Elder law         when meeting with a new client include ques-
attorneys can help you avoid potential liability by     tions about whether the prospective plaintiff has
advising your clients of asset preservation strate-     applied or, is receiving government assistance
gies and making you aware of laws and issues            (i.e. Medicaid; Supplemental Security Income;
affecting your clients.                                 Food Stamps; Section 8 HUD housing). This
                                                        section of the intake report should be updated at
The Tale:                                               least every six months. In addition, consider the
                                                        following:
         Christina Grillo was born with cerebral
palsy, cortical blindness and other medical prob-         1. Communicate the settlement offer to the client
lems due to negligent medical care. The two cases         in writing.
settled for $2.5 million, the child received $1.5
million (Grillo v. Petiete, 96-145090-92, Grillo v.       2. Confirm the client’s response to the offer in
Henry Cause, 96-167943-96 96th Dist. Ct., Tarrant         writing.
Cty., TX). Plaintiff’s counsel and the Guardian ad
Litem were later sued for malpractice. The plain-         3. Arrange for the client to meet with a structured
tiff claimed that her attorney failed to inform her       settlement specialist who can explain why and
that the defense had offered a structured settle-         how a structure is beneficial for tax, financial
ment, that counsel had failed to make a struc-            management and long-term care planning
tured settlement proposal of their own, and that          reasons.
she had not been advised how to plan to preserve
SSI and Medicaid benefits.                                4. Advise the client in writing to consult with a
         During the malpractice case an allegation        qualified elder law attorney who specializes in
was made that because there was no structured             public assistance eligibility and preservation of
settlement and no special needs trust in place,           settlement proceeds.
the proceeds were countable to the child and she
lost entitlement to Medicaid benefits. Conse-                  I hope that these suggestions improve your
quently, she would need to rely solely on the           practice and increase client satisfaction.
settlement funds to pay for her expensive, on-
going medical needs. The proceeds would likely                Stephanie L. Schneider is the Chair of
be insufficient to meet her need for 24-hour care       The Florida Bar Elder Law Section. Our firm is a
for the remainder of her life. In addition, the         proud Business Patron of the Eagle Program of
interest earned on the lump sum she received            the Academy of Florida Trial Lawyers.
was taxable and the tax benefits provided by the
federal tax code were not taken advantage of for
structures. If a special needs trust had been
employed, the child would have maintained her
Medicaid benefits while simultaneously benefit-
ting from the extra care (either beyond that which
Medicaid provides or, services and products that
Medicaid does not cover) that the trust assets
could have purchased.
         The suit against the lawyer settled for $1.6
million and the suit against the guardian ad litem
settled for $2.5 million.

								
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