If the plaintiff has a cognitive/intellectual disability, the plaintiff’s attorney must examine the interplay of the individual’s incapacity and the statute of limitations governing the suit. As the plaintiff’s attorney, you don’t want to be racing against a deadline in order to have someone appointed to act on behalf of the individual.
GAL versus Guardian
In some jurisdictions, a Guardian ad Litem can be appointed for the individual in order to represent the plaintiff’s best interests. A Guardian ad Litem (“GAL”), literally is a guardian for the suit. The power of a GAL is very specific and it ends when the suit ends. A GAL is not a guardian, a GAL does not have the authority to make decisions beyond the suit.
The appointment of a guardian is beneficial if the plaintiff will have an ongoing cognitive disability. This type of guardian can have responsibility for the individual’s personal needs and/or their property management. The court may authorize the guardian to invest assets, pay bills and make purchases for the individual. A guardian with personal needs power can make medical decisions and decide who will provide care for the person. Such a guardian would also be able to obtain or maintain government benefits for the individual.
The Authority Granted
Individual states treat guardianships differently. In New York, for instance, we have two different types of guardianship, one based on an individual’s intellectual or developmental disability and another based on an individual’s functional limitations. In New York, guardianships based on functional limitations are carefully tailored, and the guardian will only have the power set forth in the order appointing them. If that authority doesn’t expressly include authorization to commence an action on behalf of the individual, the power of the guardian must be expanded. It’s very important to begin this process early. Guardianship courts in many states have a very heavy case load, and the delay in obtaining the proper authority will impact the filing of the action, as well as discovery.
Think Outside the Box
Plaintiff’s counsel should also consider whether other family members are entitled to damages. If the injured party is married, their spouse may also have a compensable claim against the defendant. When a married couple is injured in the same accident, plaintiff’s counsel should consider factors influencing the allocation of damages between the injured parties, including the loss to one spouse caused by the more serious injuries to the other spouse.
When and Why to Consult a Special Needs Attorney
In my opinion, a special needs attorney should be brought in once plaintiff’s counsel establishes that there is a viable cause of action. At that point, the special needs attorney can assess a number of factors that may be important to the plaintiff and their family, including steps to be taken to preserve government benefits. For example, if the individual is under 65 and is expected to need means- tested government benefits, consideration should be given to creating a first party special needs trust (SNT) to hold proceeds from the suit. The opportunity to create and fund the SNT disappears once the person turns 65. If the guardian does not have the authority to establish and fund an SNT, an application for such power must be made to the court. During the time the application to create and fund the SNT is pending, the plaintiff will likely lose their means-tested benefits because the settlement funds are deemed available to them. Failing to consult with a special needs planning attorney, and to advise the client in a timely manner of the need to expand the guardian’s authority to create an SNT, is a potential disaster.
A special needs attorney can explain to the plaintiff and their family the way SNT assets are to be used. Most families understand that the money is to be used for the person who has been incapacitated and that there will be oversight by the court and/or a government agency providing the benefits. A special needs attorney can explain the trustee’s responsibilities for managing the SNT through the beneficiary’s life and the distribution of SNT funds on the death of the beneficiary of a first party SNT.
Understanding the Options and Creating the Right Plan
While an SNT is a wonderful option, it is not the only option and sometimes it is not the best option. The special needs attorney can provide the plaintiff and their family with a plan of action to be implemented upon settlement of the action. If the plaintiff is on Medicaid and has a community spouse, some states allow the transfer of assets to the community spouse. In many jurisdictions, it’s possible to transfer those assets to the community spouse without losing benefits. If the plaintiff lacks capacity, it is important to have a guardians authorized to make those transfers. Other options can include transfers to an adult child with disabilities or the purchase of exempt resources. Creating and implementing a proper plan takes time and careful consideration of all relevant information. Consulting with the right special needs attorney allows a plaintiff’s attorney to do what they does best instead of trying to address matters beyond the scope of their experience.
Why Is it Taking So Long? Must be the Lawyer’s Fault
Non-attorneys are used to watching legal dramas on television and in the movies where everything is tied up in a neat and tidy package in no more than two and half hours. Managing client expectations concerning how long it will take to address guardianship and to settle the lawsuit can avoid hours of time spent explaining “why things are taking so long.” Nothing happens as quickly as non-attorneys tend to expect. In some states it will take six months to conclude a guardianship with the authority to handle everything needed. In some cases, the court will appoint a guardian with temporary powers, but this also takes time. The special needs attorney can help the client understand that addressing the guardianship issues will avoid unnecessary delays and can help to move the suit forward.
Helping You Do What You Do Best
It is hard enough to stay current on your own practice area. A special needs attorney will be able to provide your client with current information and assist with their planning needs. Consulting with a special needs attorney once a viable cause of action is identified benefits the client and frees up the plaintiff’s attorney to do what they do best.