December 11, 2007 – Academy of Special Needs Planners

& Workers Compensation Attorneys

Presenters:

Tim Nay, Attorney

Sandy Conley, Senior Legal Assistant

Law offices of Nay and Friedenberg

Portland, Oregon

Telephone: (503) 245-0894

ATTORNEY SETTLEMENT SERVICES: WORKING WITH TORT ATTORNEYS AND OTHER STAKEHOLDERS IN YOUR FILE

Relationship between Tort Attorney and Special Needs Attorney

Tort attorneys advocate for their clients perhaps more than any other attorney

i.e., pay rent, buy cars, pay for vacations, pay co-pays, etc.

The special needs attorney is brought into the picture to help their clients determine the way to manage the assets and address special needs issues.

Plaintiffs generally have excellent ongoing relationship with tort attorney.

Tort attorneys rarely tell their clients of the process until after settlement is reached. This may be for several reasons (1) unaware of procedure, especially true of out-of-state tort attorneys; (2) they don’t want to overwhelm plaintiffs with information overload; or (3) they are concerned plaintiffs may wish to drop suit if process sounds too cumbersome.

Hiring a special needs attorney helps to minimize their liability in the settlement.

Most initiation costs of conservatorship proceeds are born by the special needs attorney until settlement funds are received. Costs can be over $1,500 due to large size of estate.

Parties Involved

Tort Attorney

Defense Attorney

Special Needs Attorney

Plaintiff and family

Settlement Brokers

Life Care Planners

Financial Planners

Courts

468B Attorney/Trustee

Potential Guardian/Conservator

Timing

Ideally special needs attorneys should be contacted at onset of case. Typically, contact is made after settlement is reached.

The time period between reaching settlement and distributing the funds is an incredibly intense and stressful time for tort attorney and all parties. This is what we call the “super sonic phase”.

The cause of stress is apparent, until distribution the proceeds are not earning income. The tort attorney often has incurred exorbitant costs associated with settlement.

Often there are several attorneys involved, each with different expectations.

Special needs attorneys must have the staff to deal with the emergency situation.

To sum it up…the proceeds need to be distributed now!

First Step

Meet personally with the attorney and plaintiff and/or their representative.

Explain your role, i.e., procedure, court philosophy towards money, timing, expectations (new home, new car). Keep good notes, generally plaintiffs and/or their representatives still focus on what they want rather than what court will allow.

Provide tort attorney with to-do list of information necessary to begin evaluating settlement and appropriate distribution.

Request tort attorney begin preparing Affidavit of Reasonableness. It is more effective if the attorney pays considerable attention to the details of the settlement. Although not required by all counties, my offices asks attorneys to prepare affidavits that meet the requirements set forth in the Multnomah County SLR.

Request potential client to begin preparing budget of needs.

Second Step

Review life care plan. Life care plans typically are prepared for trial and settlement is insufficient to fund the entire cost. Consider hiring a life care planner to apply the life care plan using the available settlement proceeds. Be sure to include costs of administration in the life care plan. This is a very important step to consider the best investment options.

Third and Final Step

Meet with settlement brokers if annuity(ies) to be purchased. Determine structure with broker and family.

Prepare settlement documents, obtain court approval if necessary.

Goal is to maintain government benefits and make settlement proceeds last a life time.