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.
Pages to are hidden for
"AFTL Women s Caucus Journal Article November IS FAILURE TO"Please download to view full document