In the last week, both the NY Times and the Wall Street Journal have published extensive articles on the conservatorship of pop star Britney Spears and the competency hearings of legendary media tycoon Sumner Redstone.
So exactly what lessons do these contrasting stories offer the structured settlement profession, and by extension the trial lawyer world, about the value of conservatorships, guardianships and competency hearings? The first is that in the wake of the string of stories about the Baltimore lead paint factoring cases, each alleging that the victims were not competent and were exploited during the process of selling their future payments, that there was in hindsight a clear need for guardianships. However, it is also clear from the articles and stories that guardianships may have been considered, but were not put in place due to the perceived cost and limits they impose on the people they are designed to protect, along with the often substantial legal hurdles of proving incompetency of the claimants. Finally, I also contend that the structured settlement compensation model directly discourages on-going service and relationships with vulnerable classes of victims who are most in need of advice and guidance post settlement, and thus deprived these vulnerable people direct access to top experts who could assist them if they were compensated to do so. I will cover each of these three points in this series, with today's segment looking at the issue of guardianships and conservatorships.
How can we preserve settlements when people, such as Britney Spears, are clearly not capable to manage their funds?
The Maryland lead paint stories on the purchase of structured settlements, while very good at highlighting concerns, had what I feel is a glaring hole in the narrative. That hole which was not addressed was this question: "If the people who sold their lead paint structured settlement programs to factoring companies were truly incompetent to make that decision, as the stories clearly imply, then why in the world weren't these lead paint victims provided with a guardianship or conservatorship?" If they weren't competent to sell their payments post settlement, then in what world were they ever competent enough in the first place to agree to a long term, fixed rate, non-liquid payment stream, absent a review by a guardian and subject to ongoing court supervision?
As the Spears case shows in great detail, this was and is a woman who was incapable of making safe and reasonable decisions about her career, personal life, finances and relationships due to an undisclosed but documented mental illness she is being treated for. Sad, but everyone witnessed the impact of that illness being left untreated and the relative success and happiness she now enjoys as a result of being supervised and living under the guardianship which was established and that is monitored by the court. Ms. Spears was lucky in several obvious areas when compared to the lead paint claimants. She had substantial financial resources, engaged and capable family members who stepped in to handle her out of control impulses, as well as access to top level legal talent capable of conserving her assets, career and family.
The lead paint claimants by comparison, sadly, did not have the same good fortune and access to protections afforded Ms. Spears. While the lead paint claimants certainly obtained top flight legal talent to litigate and settle their initial claims, they did not have the same level of ON-GOING supervision by lawyers, trustees, courts and financial experts to insure the settlements were not squandered. Instead they were put into structured settlement programs, with fixed payments, future lump sums and irrevocable payment streams. The irrevocable and fixed nature of structured settlements often give the appearance of protection against squandering, but in reality the inflexible and non-liquid nature of a structured settlement in fact only sets the perfect conditions to require selling them in the future, if the initial design ultimately doesn't meet their immediate and evolving needs. If someone only has that one asset and they need funds, there exists in 48 states a regulatory and judicial process that let's them sell parts or all of those payments to obtain the cash they feel they need. This is where things get dicey as the vast majority of the lead paint clients lacked the sophistication to weigh the impact of the decision, while also having no ongoing access to a settlement planning expert who could assist them with the process.
To my knowledge few if any of these structured settlements were being paid into trusts or had on going financial and settlement planning advice to insure their long term success. There is little doubt if a determination at settlement had been made that these people needed either a guardianship or a trust company handling the proceeds, far fewer of these cases would have been sold via the secondary markets or if sold a better deal could have been struck. While Britney Spears had top legal, financial and professional advice brought together to help her crisis and then manage her personal and professional life for the subsequent eight years, the victims of lead paint settlements were for the most part left on their own post settlement with the theory that by "locking up" their funds in a structured settlement they would be set for life. It is a reality that the element which makes a structured settlement so appealing, it's irrevocable nature and fixed payments, often conspires to force claimants to sell their payments if the plan in subsequent years no longer fits their needs and they face a financial crisis with out any other assets to turn to.
This dilemma of a clear need for on going supervision and determination of the injured parties competence to make decisions highlights yet another problem in this process, one that the Sumner Redstone situation competency hearing is driving home in court. That problem is that while just about everyone would agree that many of the lead paint victims could benefit from a guardianship, these arrangements are typically expensive, cumbersome and subject to abuse if not properly administered and monitored by the court. (A process the NY Times article on Spears illustrates clearly and in great detail.) Also, as pointed out in the NY Times profile, to make a guardianship work the legal and settlement team needs to assess and then prove incompetency in court hearings, a process requiring access to experts as well as multiple court hearings on competency and mental capacity. As the Redstone case shows, this process can be brutally tough if the parties involved are fighting it or have competing motives or interests in the outcome.
In short, while it's easy to argue a guardianship was needed for the lead paint claimants, the reality is that taking that step in those cases would have added to the time, expense and pain of the process, as well as adding on going costs long term. In just about every case I would imagine that every dollar was needed for current and future needs, making the cost of on going administration a burden on an already financially challenged victim. However, the question we need to ask as professionals is whether the cost and benefits of on going assistance and supervision on the settlement funds is not in fact far cheaper then the price these people paid to legally obtain access to the present value of their settlement funds in the secondary markets? There is clearly a cost either way and it is up to us as a profession to address those costs and benefit models and provide trial lawyers with real options that protect that hard fought funds they obtained in litigation.
The question I intend to address in parts two and three of this series, is what sort of on going protections are reasonable and affordable in these cases and what can the settlement planning profession do to prevent these types of mass cash out's from happening again. We will also examine the Sumner Redstone competency hearings to illustrate what can happen when you go to court and try to determine if someone should go under a guardianship and if their assets need to be protected.