GUARDIAN AD WHAT? AL ELLIS

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1 GUARDIAN AD WHAT? AL ELLIS Trial Lawyer/Mediator Of Counsel Sommerman & Quesada, LLP 3811 Turtle Creek Blvd., Suite 1400 Dallas, TX State Bar of Texas 29 th ANNUAL ADVANCED PERSONAL INJURY COURSE Dallas July 10-12, 2013 San Antonio August 7-9, 2013 Houston August 28-30, 2013 CHAPTER 38

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3 RESUME Al Ellis Of Counsel Sommerman & Quesada, L.L.P Turtle Creek Boulevard, Suite 1400 Dallas, Texas (214) (214) fax Education: South Oak Cliff High School Dallas, Texas; with honors University of Texas Arlington, Texas; with honors Southern Methodist University Law School Dallas, Texas Journal of American Law & Commerce Barristers Phi Alpha Delta Law Fraternity Date of Birth: August 26, 1943 Spouse: Sandra (Sandy) Lee Ellis Children: Joshua Kyle Ellis, Mike Fahey, Jennifer Fahey Military Service: United States Army Airborne/ Infantry Honorable Discharge Rank on Discharge-Captain Assignments: Dominican Republic Fort Bragg, North Carolina Republic of Vietnam Practice: Federal Courts in the Northern, Southern, Eastern, and Western Districts of Texas, Fifth Circuit Court of Appeals; United States Supreme Court; Certified Specialist Civil and Personal Injury Trial Law--Texas Board of Legal Specialization; Certified Trial and Pre-Trial Advocate-National Board of Trial Advocacy. Tried over 175 jury trials. Mediator. Martindale-Hubbell rated AV Preeminent for 35 years. Professional Activities (Present): International Academy of Trial Lawyers Litigation Counsel of America (Trial Lawyer Honorary Society) The National Trial Lawyers (Top 100 Trial Lawyers) Million Dollar Advocates Forum TMCA Credentialed Advanced Mediator Association of Attorney Mediators SBOT District 6 Grievance Committee Texas Center for Legal Ethics and Professionalism (Chair ) Dallas Bar Association (Board ofdirectors 1978, ; Chairman ofthe Board, 1986; Vice-President 1987 & 1988; President-Elect 1989; President 1990) Diplomate, American Board of Trial Advocates (Secretary/Treasurer, 1998; President-Dallas Chapter, 1999; National Board ofdirectors, ) Board of Directors, Law Focused Education, Inc. (President, ) W. M. "Mac" Taylor, Jr., American Inn of Court Dallas Trial Lawyers Association (President 1977) Texas Trial Lawyers Association (Board ofdirectors , Emeritus ) SMU Law School Trial Advocacy Instructor Sustaining Life Fellow, Texas Bar Foundation (2009-secured $1.2 million in new Fellow pledges)

4 Senior Life Fellow, American Board of Trial Advocates Foundation Sustaining Life Fellow, Dallas Bar Foundation Life Fellow, Dallas Association of Young Lawyers Foundation American Association for Justice Trial Lawyers for Public Justice Fellow, Roscoe Pound Foundation Pro Bono College of State Bar of Texas (Charter Member) College of State Bar of Texas Senior Counsel, The College of Master Advocates & Barristers J. L. Turner Legal Association Dallas Hispanic Bar Association Dallas Association of Asian American Lawyers State Bar of Texas (frequent committee service) Professional Activities (Past): Editorial Committee, "Quest For Justice: Louis A. Bedford, Jr. And The Struggle For Equal Rights In Texas" (2008) Editorial Committee, "Indomitable Sarah: The Life of Judge Sarah T. Hughes" (2006) Texas Commission for Lawyer Discipline ( ) President, Dallas Bar Association (1990) President, Dallas Association ofyoung Lawyers (1977) President, Dallas Trial Lawyers Association (1977) Board ofdirectors, State Bar oftexas ( ; Executive Committee ) Board ofdirectors, Legal Services ofnorth Texas ( ; ) BoaraorDirectors, Texas Legal Services Center Board ofdirectors, Dallas Legal Hospice (Secretary, 1991) Board of Directors, Texas Equal Access to Justice Foundation (IOLTA) Board ofdirectors, State Bar College Board of Trustees, Dallas Bar Foundation State Bar of Texas District VI Grievance (PEP) Committee ABA Special Committee on Youth Education for Citizenship ( ; Chair ) Dallas Bar Association Courts and Courts Facilities Department Board of Directors, Lawyers Committee for Civil Rights Under the Law of Texas Chair, Dallas Bar Association Task Force on Professionalism Candidate for President-Elect, Texas Young Lawyers Association (1979) Executive Committee, Texas College of Trial Advocacy Dallas Committee for a Qualified Judiciary (Secretary/Treasurer ) Guest Lecturer for Law Focused Education Teacher Training Summer Seminars 1975 to 1977, 1997 Community Activities (Past and Present): Salesmanship Club (Camp Board 1983, , 1995) Board of Directors, Dallas Area Habitat for Humanity ( , ) Habitat for Humanity House Party Chair ( ) Tournament Director, Dallas Regional Golden Gloves Tournament, ( ) President, Dallas Council on Alcoholism President, Dallas All Sports Association (1980) Dallas Assembly Leadership Dallas ( ) Member, City of Dallas Urban Rehabilitation Standards Board ( ) 2

5 Board of Trustees, Historic Preservation League Mayor's Child Care Task Force Mayor's Task Force on Adolescent Health and School Age Pregnancy Education Committee, Dallas Chamber of Commerce Dallas Motion Picture Classification Board ( ) City of Dallas Fund Solicitation Board ( ) Advisory Committee, Magnet for Public Services: Government and Law D.I.S.D. (Chairman, ) D.I.S.D. Police Academy Task Force Dallas Jaycees (Board of Directors ; Vice President ; Legal Counsel, ) Metropolitan Effort for Positive Youth Leadership Jaycee Park Recreation Center Advisory Committee ( ) Board ofdirectors, Southwest Allied Youth ( ) Chair, Skyline High School Man and His Environment Advisory Committee Advisory Council, Dallas Area Agency on Aging ( ) Goals for Dallas--Public Safety Committee Leadership Dallas Advisory Committee (1981) Fair Campaign Practices Committee ( ) D.I.S.D. Community Advisory Committee on Discipline Fund-Raising Drives: a. b. c. d. e. f. g. h. Sarah-T:-I= uglres-diverstty-fellowsnips{raisecrover$500~ooor Habitat for Humanity (raised over $500,000) Bishop College Junior Achievement Help is Possible State Fair of Texas Junior Livestock Auction Dallas Volunteer Attorney Program American Heart Association i. American Cancer Society Awards & Honors: 2013-Dallas Bar Association Martin Luther King, Jr. Justice Award 2013-University of Texas Arlington Department of Military Science Hall of Honor Inductee 2012-Dallas Minority Attorney Program Legacy Award University of Texas Arlington Distinguished Alumni 2011-Dallas Habitat for Humanity 20 Year Service Award 2010-Jim D. Bowmer Professionalism Award-College of the State Bar of Texas 2010-Dallas Lawyers Auxiliary Justinian Award for longstanding volunteer service 2009-Dallas Bar Association Presidential Citation 2009-J.L. Turner Legal Association C.B. Bunkley Community Service Award 2009-Dallas Habitat for Humanity Family Services Award 2007-Named as one of 500 Leading Plaintiffs' Lawyers in America by Lawdragon 2007-Judith Sinclair Radman Award from William "Mac" Taylor Inn of Court for the "highest standards of public service and professionalism" 3

6 2004-DAYL Foundation Excellence in Profession Award "The Best Lawyers in America" "Super Lawyers" - Texas Monthly Magazine 2003-Dallas Habitat for Humanity Hero 2003-Texas Bar Foundation Dan R. Price Memorial Award 2003-"Best Lawyers in Dallas" - D Magazine 2002-First Recipient, "Al Ellis Award" by Dallas Minority Bars Who's Who in Finance and Business, in the World, in American Law, in America, in the South and Southwest, in Texas 1996-Nominee, United States Presidenf s Service Award 1996-Nancy Garms Memorial Award for Outstanding Contribution to Law Focused Education 1996-Leon Jaworski Award for Teaching Excellence, Law Focused Education, Inc KRLD NewsRadio 1080 Citizen of the Week, July 5, Honorable Mention, Volunteer Center Lifetime Service Award 1994~State Bar of Texas Opportunities for Minorities in the Profession Commission Excellence in Diversity Award 1994~Outstanding Third Year Director, Board of Directors, State Bar of Texas Judge Sam Williams Local Bar Leadership Award for Outstanding Contribution to the State Bar of Texas 1993 Dallas All Sports Association Distinguished Service Award 1993 Dallas Business Journal's Community Spirit Award 1992 Certificate of Appreciation, Dallas Tenants Association 1991 Dallas Business Journal/Who's Who in Law 1990-Legal Services of North Texas Outstanding Service Award 1990-Dallas Trial Lawyers Association Distinguished Community Involvement Award Recipient of eight Certificates of Appreciation from Superintendent of Schools, D.I.S.D Certificate of Appreciation for Exceptional and Distinguished Volunteer Service from Governor Mark White 1981-Community Council of Greater Dallas Certificate of Recognition 1979 Dallas Jaycees Distinguished Service Award 1978-Dallas Association of Legal Secretaries Boss of the Year 1977-Dallas County Young Lawyer of the Year 1977 Outstanding Young Men of America Dallas Jaycees Hayward McMurray Award Wall Street Journal Award, SMU Law School 1971-Student Chief Counsel, SMU Legal Clinic 4

7 TABLE OF CONTENTS I. SCOPE OF PAPER... 1 II. RULE 173 TEX. R. CIV. P. (EMPHASIS SUPPLIED)... 1 A Appointment Governed by Statute or Other Rules... 1 B Appointment of Guardian ad Litem... 1 C Procedure... 1 D Role of Guardian ad Litem... 1 E Communications Privileged... 1 F Compensation... 1 G Review... 2 H. Comments I. Comparison of Guardian Ad Litem and Attorney Ad Litem... 2 III. WHEN IS THERE AN APPEARANCE OF A CONFLICT... 2 A. Brownsville v. Valley Regional Medical Center, Inc. v. Gamez, 894 S.W.2d 753 (Tex. 1995) B. Land Rover U-K, Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006) C. Ford Motor Company, et al. v. Stewart, Cox & Hatcher, PC and Turner & Assts., P.A., Respondents, 390 S.W.3d 294 (Tex. 2013) (Attachment A)... 3 IV. TYPICAL CONFLICTS WARRANTING THE APPOINTMENT OF A GUARDIAN AD LITEM... 3 V. COMPENSATION OF THE GUARDIAN AD LITEM... 4 A. Fees Permitted B. Fees Not Permitted C. Application for Fees... 4 D. Overbilling and Objection to Fees... 4 VI. ALTERNATIVES FOR HANDLING FUNDS... 5 A. Registry of Court... 5 B. Section 142 Trust... 5 C. Texas Probate Code, 867 Trust... 6 D. Structured Settlements (probably the most utilized form of investment for the minor s settlement funds) E. Qualified Settlement Funds... 8 VII. CONCLUSION... 9 i

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9 GUARDIAN AD WHAT? I. SCOPE OF PAPER The purpose of this paper is to briefly outline the duty and responsibilities of a guardian ad litem in civil lawsuits involving minors and impaired individuals and to summarize the available tools for distribution of settlement proceeds. According to dictionary sources, ad litem means for the particular action or proceeding. Thus, a court-appointed guardian ad litem in a civil lawsuit involving a minor or an impaired individual is an advocate for that particular person who determines what is in the best interest of that person and who speaks on behalf of that person when conflicts or potential conflicts prevent either the parties or their attorneys from doing so. As is so often the case, rules and opinions in regard to guardians ad litem have been developed primarily due to the abuse of the system in the past which has caused the Texas Supreme Court and appellate courts to limit the duties and responsibilities of court-appointed guardians ad litem. II. RULE 173 TEX. R. CIV. P. (EMPHASIS SUPPLIED) A Appointment Governed by Statute or Other Rules This rule does not apply to an appointment of a guardian ad litem governed by statute or other rules. B Appointment of Guardian ad Litem (a) When Appointment Required or Prohibited. The court must appoint a guardian ad litem for a party represented by a next friend or guardian only if: (1) the next friend or guardian appears to the court to have an interest adverse to the party, or (2) the parties agree. (b) Appointment of the Same Person for Different Parties. The court must appoint the same guardian ad litem for similarly situated parties unless the court finds that the appointment of different guardians ad litem is necessary. C Procedure (a) Motion Permitted But Not Required. The court may appoint a guardian ad litem on the motion of any party or on its own initiative. 1 (b) Written Order Required. An appointment must be made by written order. (c) Objection. Any party may object to the appointment of a guardian ad litem. D Role of Guardian ad Litem (a) Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to the court. (b) Determination of Adverse Interest. A guardian ad litem must determine and advise the court whether a party s next friend or guardian has an interest adverse to the party. (c) When Settlement Proposed. When an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party s best interest. (d) Participation in Litigation Limited. A guardian ad litem: (1) may participate in mediation or a similar proceeding to attempt to reach a settlement; (2) must participate in any proceeding before the court whose purpose is to determine whether a party s next friend or guardian has an interest adverse to the party, or whether a settlement of the party s claim is in the party s best interest; (3) must not participate in discovery, trial, or any other part of the litigation unless: (A) further participation is necessary to protect the party s interest that is adverse to the next friend s or guardian s, and (B) the participation is directed by the court in a written order stating sufficient reasons. E Communications Privileged Communications between the guardian ad litem and the party, the next friend or guardian, or their attorneys are privileged as if the guardian ad litem were the attorney for the party. F Compensation (a) Amount. If a guardian ad litem requests compensation, he or she may be reimbursed for reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for necessary services performed.

10 (b) Procedure. At the conclusion of the appointment, a guardian ad litem may file an application for compensation. The application must be verified and must detail the basis for the compensation requested. Unless all parties agree to the application, the court must conduct an evidentiary hearing to determine the total amount of fees and expenses that area reasonable and necessary. In making this determination, the court must not consider compensation as a percentage of any judgment or settlement. (c) Taxation as Costs. The court may tax a guardian ad litem s compensation as costs of court. (d) Other Benefit Prohibited. A guardian ad litem may not receive, directly or indirectly, anything of value in consideration of the appointment other than as provided by this rule. G Review (a) Right of Appeal. Any party may seek mandamus review of an order appointing a guardian ad litem or directing a guardian ad litem s participation in the litigation. Any party and a guardian ad litem may appeal an order awarding the guardian ad litem compensation. (b) Severance. On motion of the guardian ad litem or any party, the court must sever any order awarding a guardian ad litem compensation to create a final, appealable order. (c) No Effect on Finality of Settlement or Judgment. Appellate proceedings to review an order pertaining to a guardian ad litem do not affect the finality of a settlement or judgment. H. Comments. 1. The rule was completely revised in The rule contemplates that a guardian ad litem will be appointed when a party s next friend or guardian appears to have an interest adverse to the minor/impaired person because of the division of settlement proceeds. In those situations, the responsibility of the guardian ad litem as prescribed by the rule is very limited, and no reason exists for the guardian ad litem to participate in the conduct of the litigation in any other way or to review the discovery or the litigation file, except to the limited extent 2 that it may bear on the division of settlement proceeds. 3. Only in extraordinary circumstances does the rule contemplate a guardian ad litem to have a broader role. 4. Though an officer to the court, a guardian ad litem must not have ex parte communications with the court. Texas Code Judicial Conduct, Canon Because the role of the guardian ad litem is limited in all but extraordinary situations, and any risk that might result from services performed is also limited, compensation, if any is sought, should ordinarily be limited. (Editorial comment: it is abuse in this area by certain lawyers and judges that caused the Texas Supreme Court to greatly limit the role of the guardian ad litem.) I. Comparison of Guardian Ad Litem and Attorney Ad Litem 1. The term guardian ad litem is often confused with the term attorney ad litem because both are used in the TRCPs, the Probate Code, the Family Code and other statutes. 2. A guardian ad litem is an officer appointed by the court to assist in protecting the settlement interest of a party who was represented by a next friend or guardian with an adverse interest. American General Fire & Casualty Company v. Vandewater, 907 S.W.2d 491, 493 n.2 (Tex. 1995) (guardian ad litem is not child s attorney but officer appointed by court to help protect child s interest). 3. An attorney ad litem performs the same services as an attorney, giving legal advice, doing research and conducting litigation for an incapacitated party. City of Houston v. Woods, 138 S.W.3d 574, 582 (Tex. App. Houston, 14 th Dist. 2004, no pet.) III. WHEN IS THERE AN APPEARANCE OF A CONFLICT A. Brownsville v. Valley Regional Medical Center, Inc. v. Gamez, 894 S.W.2d 753 (Tex. 1995). As previously stated, the court must appoint a guardian ad litem for a party represented by a next friend or guardian when the next friend or guardian appears to have an interest adverse to the party. B. Land Rover U-K, Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006). A guardian ad litem is not an attorney for the child, but an officer appointed by the court to assist in

11 protecting the child s interest when a conflict of interest arises between the child and the child s guardian or next friend. As a personal representative of a minor, a guardian ad litem is required to participate in the case only to the extent necessary to protect the minor s interest, and should not duplicate the work performed by the plaintiff s attorney. C. Ford Motor Company, et al. v. Stewart, Cox & Hatcher, PC and Turner & Assts., P.A., Respondents, 390 S.W.3d 294 (Tex. 2013) (Attachment A) 1. The recent Supreme Court per curiam decision in Ford Motor Company, et al. v. Stewart, et al. is another attempt by the Texas Supreme Court to limit the appointment and activity of court-appointed guardians ad litem. 2. The facts leading to the appointment of the guardian ad litem in this case are somewhat convoluted in that there were two settlements, one with Firestone in which no guardian ad litem was appointed and one with Ford Motor Company in which a guardian ad litem was appointed due to the court s finding the next friend s obligation to pay her daughter s medical expenses, coupled with her desire to pay the medical bills with proceeds from the settlement, constituted a conflict necessitating the appointment of a guardian ad litem. The Texas Supreme Court held:... a parent s obligation to provide her child with medical care, standing alone, does not create a conflict of interest within the confines of Rule 173. (emphasis supplied). 3. It may be argued that within the confines of this restrictive holding, the appointment of a guardian ad litem was not warranted. As a practical matter, those who deal with minor settlements know from experience there is rarely such a simple fact scenario in which the next friend is conflicted only because of the parent s obligation to provide the minor with medical care. The medical care issue, coupled with other conflicts, is not that simple. It is apparent the writer of this Supreme Court per curiam opinion may not been involved in a trial practice at all or for a very long time 4. The issue of the duty and obligation for medical care for a minor or impaired person is often more complex. It is not just the issue of duty and responsibility to pay medical bills standing alone, but more often involves issues of subrogation claims from Medicaid, health insurance companies, hospitals, etc. In short, it is naïve at best to believe a parent, acting as a next friend, would ever be more than willing to assume the personal responsibility for medical bills, Medicaid, subrogation liens and hospital liens as opposed to wanting those obligations to be paid from the minor s settlement proceeds. 5. The above is true, especially when there is a so-called friendly suit, whereby the next friend is pro se. In that situation, almost 100% of the time the next friend wants no personal responsibility for payment of medical bills and subrogation claims, and wants all of the responsibility for payment to come from the minor s settlement proceeds. The conflict is apparent in spite of the ruling of the Texas Supreme Court in Ford Motor Company, et al. v. Stewart, Cox & Hatcher, et al. 6. The issue of how trial courts will react to Ford Motor Company, et al. v. Stewart, Cox & Hatcher, et al. has yet to be determined. Will they require a detailed analysis of the nature and extent of any conflict by an appointed guardian ad litem before he/she performs any services whatsoever, or will they continue to appoint guardians ad litem whenever a minor or impaired person settlement is contemplated, allowing the guardian ad litem to perform his/her limited duties and responsibilities pursuant to Rule 173, TEX. R. CIV. P.? The final answer will probably be determined when appointed guardians ad litem abuse their appointment and attempt to obtain ad litem fees in excess of those warranted by Rule 173, TEX. R. CIV. P. IV. TYPICAL CONFLICTS WARRANTING THE APPOINTMENT OF A GUARDIAN AD LITEM A. Multiple family claimants with limited funds to resolve all claims, especially in wrongful death lawsuits or personal injury automobile accidents in which several individuals in the same vehicle or vehicles have been injured and are making claims against liability insurance carriers where minimum policy limits exist. B. Parents wanting to control settlement proceeds and the manner in which an injured child shall receive those proceeds. 3

12 C. Parents wanting to ensure all medical bills and subrogation claims are paid from the minor s settlement funds when limited funds are available and the best interest of the minor would be for the parents to assume the responsibility for those payments. D. Where subrogation claims and liens such as Medicare, Medicaid, health insurance subrogation claims, hospital or workers compensation liens exist. For a detailed and thorough analysis of all subrogation claims that may be made against a minor s settlement proceeds, see Judy Kostura s article presented annually at the SBOT Advanced Personal Injury Seminar, entitled Subrogation and Liens, Medicare and Medicare Set Asides. 1. This just in recently passed House Bill 1869 reforms the Supreme Court decision in Fortis v. Cantu, and allows for proportionate distribution of health insurance subrogation claims beginning January 1, (Attachment C.) Since the duty of the guardian ad litem includes negotiating and reducing outstanding subrogation claims and liens, especially when the plaintiff is pro se, it is behooving guardians ad litem to become familiar with this new law. While there may be no conflict between the parent/next friend and the minor, there is a definite conflict between the injured minor and all of the entities claiming a subrogation interest in his/her settlement. This conflict, in and of itself, warrants, if not mandates, the appointment of a guardian ad litem, an issue which the Texas Supreme Court may not fully appreciate. V. COMPENSATION OF THE GUARDIAN AD LITEM A. Fees Permitted. The guardian ad litem is entitled to a reasonable fee for services rendered. Land Rover UK, Ltd. v. Hinojosa, 210 S.W.3d, 604, 607 (Tex. 2006). Generally speaking, a guardian ad litem is entitled to reimbursement for reasonable and necessary expenses incurred and a reasonable hourly fee for services performed. Rule 173.6(a), TEX. R. CIV. P. B. Fees Not Permitted. 1. A guardian ad litem cannot be paid for work performed outside the scope of his/her duties as guardian ad litem. Hinojosa, 210 S.W.3d at A guardian ad litem cannot be awarded fees for services to be performed or performed after the conflict of interest that necessitated his/her appointment has been resolved. Frank A. Smith Sales, Inc. v. Flores, 907 S.W.2d 487, 488 (Tex. 1995). 3. A guardian ad litem cannot be awarded fees for representing his/her own interest. Holt Texas, Ltd. v. Hale, 144 S.W.3d 592, (Tex. App. San Antonio 2004, no pet.). C. Application for Fees Generally speaking, a guardian ad litem should make a formal application for fees if no agreement regarding fees and expenses can be reached with the defendant s lawyers. (Attachment B.) The most expeditious way to handle payment of fees is for the guardian ad litem and the defense lawyers to agree upon the fee and reimbursement of expenses which can be accomplished most of the time. D. Overbilling and Objection to Fees 1. To complain about the guardian ad litem fees on appeal, a party must make its objection known to the trial court either orally (on the record during the litigation or at the hearing on guardian ad litem fees) or in writing in a motion or response filed with the court. Jocson v. Crab, 133 S.W.3d 268, (Tex. 2004). 2. Overbilling a. The guardian ad litem should not be compensated for overbilling his/her expenses and services. Jocson v. Crab, 133 S.W.3d 268, (Tex. 2004). (Guardian ad litem submitted a bill for, among other things, $5, for reviewing deposition notices, $35, for attending depositions and $19, for reviewing letters.) Goodyear Dunlop Tires v. Gamez, 151 S.W.3d 574, 582 (Tex. App. San Antonio 2004, no pet.). (Six guardians ad litem submitted a bill for just under $400,000.00, including charges for time spent sleeping, for summarizing depositions, for associates work and for more than 24 hours in a day for more than one attorney.) b. Editorial Comment: It should be remembered the work of a guardian ad litem is a service to assist the court in 4

13 ensuring a person is receiving a fair settlement, has someone looking out for his/her best interest and has someone ensuring the settlement distribution is fair and reasonable to the minor or incapacitated person. It is not, and was never intended to be, a cottage industry for attorneys. The conduct described above has resulted in attempts to strictly limit the role of the guardian ad litem as a service to the court and, in many ways, has inhibited the guardian ad litem from performing his or her responsibility. VI. ALTERNATIVES FOR HANDLING FUNDS A. Registry of Court 1. Settlement or judgment proceeds recovered on behalf of a minor or impaired person may be invested by the clerk of the court. Tex. Prop. Code, (a). 2. This type of investment is the worst of those available, especially in light of today s low interest rates. The clerk of the court may only invest the proceeds in a savings account or certificate of deposit domiciled in Texas and insured by the FSLIC. 3. If the minor has no Social Security number, most clerks will not invest the funds, holding them in registry without interest. 4. As a general rule, this investment should only be utilized when the net funds to the minor are relatively small or the minor will turn 18 within a short period of time following the investment of funds. 5. Any judgment ordering such an investment should contain language which allows the minor to obtain the funds upon reaching the age of 18 and providing proper identification to the clerk of the court without the necessity of further order by the court. 6. When the minor is relatively young or the net funds to the minor are in excess of $10,000.00, alternative investments should be utilized so that the minor will not be receiving a large sum of money at age 18, when the minor may not be mature enough to handle the funds. 7. Caveat. Section , Texas Prop. Code, allows investment into Texas Tomorrow Funds (www.texastuitionpromisefund.com; ). If the judge directs the investment in a court order, district and county clerks must do so. B. Section 142 Trust 1. The purpose of a Section 142 Trust is to provide a management vehicle for proceeds received from judgments or settlements in favor of minors or impaired persons. Tex. Prop. Code, A Section 142 Trust can be created only if the next friend applies for it, and they must show the court the trust is in the best interest of a person. Factors the court should consider include: a. Beneficiary s age; b. Maturity of the beneficiary; c. Amount and type of recovery (when using banks as corporate trustees, minimum investment is usually $200,000-$300,000. Smaller investments for impaired persons only can be pooled with Arc of Texas Master Pooled Trust, ); d. Beneficiary s family situation; e. Desire for professional management and supervision by a corporate trustee; and f. Trustee s flexibility in making discretionary distributions according to the varying needs of the beneficiary. 3. Qualifications of the Trustee the Trustee of the Section 142 Trust must be a trust company or a state or national bank having trust powers in Texas. Tex. Prop. Code, (a). 4. Revocation and Amendment the trust is irrevocable and unamendable except by the court. Tex. Prop. Code, (d). 5. Mandatory Trust Provisions - there are several mandatory trust provisions established by the Texas Property Code, For this reason, the guardian ad litem should employ an attorney familiar with the establishment of these trusts to draft necessary trust documents. Most of the time, the expense of drafting trust documents can be reimbursed to the guardian ad litem upon application to the court or with agreement of the defendant s lawyers. 6. Advantages of the Section 142 Trust: a. The trustee may make discretionary distributions to the beneficiary without court approval and in amounts consistent with the beneficiary s health, education and support needs; 5

14 b. The trust may continue until the beneficiary reaches age 25. It does not have to terminate at the earlier age of 18; c. The trust may be established to receive settlement proceeds in the form of installment or annuity payments as part of a structured settlement; d. Flexibility Trusts are managed by professionals and they can change the portfolio (or asset allocation) of a trust to accommodate the changing needs of the beneficiary. [Changes in the percentage of investments in stocks (equities) versus bonds (fixed income)]. e. Transparency most corporate trustees provide monthly statements to the beneficiary and/or their representative to show all activity in the account. f. Regulated Financial Institution Corporate trustees are not only internally audited by their parent corporation, but are also regulated by the federal government through the Office of the Comptroller of the Currency (OCC). g. Investment Management At many corporate trustees, a professional money manager is assigned to handle investments. h. Personal Representative At most regional and community based banks, the trust department provides a personal representative that works with the family. i. The trust may be established as a Special Needs or Medicaid- Qualifying trust, which will allow the injured person to preserve his/her eligibility to receive governmental benefits during the lifetime of the injured person. When the injured person dies, the remaining assets of the trust are used to reimburse the governmental assistance program which paid the benefits, provided assets remain in the trust at the time of the death. Tex. Prop. Code, (g). C. Texas Probate Code, 867 Trust These trusts are similar to 142 trusts, but can be established pursuant to the Texas Probate Code, 867 to 873 in a situation where a formal guardianship has been established by a probate court for a minor or incapacitated person. D. Structured Settlements (probably the most utilized form of investment for the minor s settlement funds). 1. Historically, damages paid because of a personal injury lawsuit came in the form of a lump sum at the time of the settlement or judgment. This kind of payment placed the claimant or the family in the position of managing a large sum of money, which was intended to provide for a lifetime of medical and income needs. Since most people were not experienced in handling large sums, there was always a danger the money would be spent quickly or invested unwisely, leaving little or nothing to cover future needs of a seriously injured person. 2. With IRS rulings in 1977 and 1979, the value of purchasing a structured settlement with settlement proceeds was enhanced for the payments made pursuant to a structured settlement remained non-taxable. 3. A structured settlement is any settlement paid out over more than one payment. For years, structured settlements have been widely used in the tort area to compensate injured persons by providing the injured party the ability to receive their damages in the form of tax-free periodic payments. These tax-free payments come from a wellcapitalized, financially experienced institution, and are tailored to meet the injured minor s future medical expenses, basic living needs or college expenses. Claims professionals, plaintiff attorneys, judges and defense lawyers advocate the use of structured settlements because they can effectively meet a claimant s needs for security, and provide more benefits over time than a single lump-sum settlement because of applicable tax rates. 4. The following are but a few applications where a structured settlement could be considered: a. Lost income/fringe benefits; b. Lifetime income; c. College fund (especially for minors); d. Medical needs (catastrophic injury); e. Protect minor s benefits until legal adulthood; f. Retirement income; g. Special needs trust; h. Future medical needs i. Tax management and fringe benefits guaranteed for life. 6

15 5. Benefits of a Structured Settlement a. An assured payment stream that is fully tax-free as damages as long as IRS requirements are met. b. Structured settlements paid into Section 142 Special Needs Trust still allow the claimant his/her entitlement to Medicaid/Medicare services. c. The rate of return available on a commercial annuity is more certain than the rate of return on an investment of trust assets under the Section 142 Trust approach, though the certain rate of return may be higher or lower than the investment of trust assets. d. Avoiding the risk of mismanagement of trust funds, as the structured settlement payments are usually guaranteed, funded by a major insurance company and protected by various states guaranty funds. e. Claimant receives compensation when it is needed as opposed to a lump sum which may be foolishly spent or invested. f. The claimant can receive more compensation over time than with a lump sum settlement. g. No annual fees or management charges. h. Structured funds cannot be attached through a court proceeding. A lien cannot be placed against these proceeds. 6. Disadvantages of a Structured Settlement a. Inflexibility of the payout schedule once a structured settlement is purchased. b. Future unanticipated problems may arise which will not be covered by the structured fund payments, and which may have been more easily taken care of through a Section 142 Trust. 7. Annuity Options a. Guaranteed period certain the annuity is paid for a specific period. If the beneficiary dies during the period, the beneficiary s estate or other designated beneficiary will receive the remaining installments. b. Lump sum payment of a fixed sum of money at a specified future date. The lump sum is a guaranteed payment and distributed as above. c. Life only annuity annuity payments are paid during the beneficiary s lifetime. Upon death, the obligation to make the payments terminates. d. Life annuity with guaranteed term the annuity is paid as long as the beneficiary is living, but not less than a specified period. The specified period represents guaranteed payments, consequently, if the beneficiary dies during the specified period, the beneficiary s estate or other designated beneficiary shall receive the remaining installments. 8. Late Night TV Why Wait Years For Your Annuity Payments? Get Fast Cash Now! a. Annuitants, especially minors once they reach adulthood, are often tempted by late night ads on television offering to purchase their annuity and provide them with ready cash. Fortunately, in 2001, Texas enacted the Structured Settlement Protection Act which regulates and controls the sale of annuities. b. Structured Settlement Protection Act, Section , et. seq., CIV. P. REM. CODE. (1) In order for an annuitant to sell his/her structured settlement, the annuitant must obtain court approval and prove the transfer is in the best interest of the annuitant, taking into account the welfare and support of the payee s dependants , CIV. P. REM. CODE. (2) The transfer must either be approved by the court whether the original lawsuit was filed, or if that court no longer has jurisdiction over the annuitant, a court in the county in which the payee resides , CIV. P. REM. CODE. c. Most courts require, and it is always wise, to include a paragraph in the final judgment specifically referring to the Structured Settlement Protection Act, and the fact an annuity cannot be sold without court approval. d. While there are often legitimate financial reasons for an annuitant to sell his/her annuity, as a general rule, sale is not a good idea as most of the companies purchasing annuities will 7

16 initially try to purchase the annuity for as little as 20 on the dollar. e. Conscientious judges who receive a petition for the purchase of an annuity, will often appoint an attorney ad litem (not guardian ad litem) to represent the annuitant to determine if it is in the annuitant s best interest to sell the annuity and to negotiate the best possible purchase price on behalf of the annuitant. In this regard, the attorneys fees for the attorney ad litem will most often be paid by the company purchasing the annuity. f. Attached as Attachment D is a list of companies who purchase annuities and who are members of the National Association of Settlement Purchasers. In all instances in which an annuitant or the attorney ad litem has received a purchase offer for an annuity, efforts should be made to contact one or more of the companies listed in order to negotiate the best possible purchase price. E. Qualified Settlement Funds 1. When a settlement offer has been made that your client wishes to accept, and there is little time to negotiate various subrogation claims and make a determination in regard to structured settlement options, allocation issues and special needs trusts, a Section 468B Qualified Settlement Trust is often the answer (for an excellent discussion of the Qualified Settlement Trust, see the several papers authored by Pi-Yi Mayo of Baytown, Texas for past SBOT seminars. 2. Section 468B of the Internal Revenue Code allows defendants to make payments to a court-created trust fund. Generally speaking, 458B funds act as an intermediary party to a lawsuit. These funds allow defendants and their insurers to make payments to a courtcreated trust fund. The fund is subject to the court s continued oversight. The payments to the fund made by the defendants are tax deductible to the defendants at the time payment is made, no matter when the plaintiff actually receives payment from the fund. The fund administrator then works to make proper allocations among plaintiffs and claims, and has the flexibility to arrangement payments in a number of ways, including cash payments, periodic payments or through a Special Needs Trust. Payments to the plaintiffs in whatever form they may take remain non-taxable. 3. By establishing a Qualified Settlement Trust, the plaintiffs have much more flexibility. Paying settlement funds from the individual defendant into a Qualified Settlement Trust until all claims have been settled allows the plaintiffs a better picture of the entire settlement amount which remains in the Trust until all claims are settled, while earning interest for the plaintiffs. The plaintiffs do not have constructive receipt as long as there are sufficient allocation issues still in dispute. 4. Advantages of Using a Qualified Settlement Trust. a. Allows defendants to disengage from litigation quickly. b. Defendants can walk away from the litigation without being bothered by allocation issues or waiting on Medicare or Medicaid liens to be settled. c. Gives the plaintiff and plaintiff s counsel breathing space to finalize allocation issues. d. Allows the settlement to move forward while preserving all distribution options for each plaintiff. e. Allows each plaintiff time to decide on the form of distribution that best suits his or her needs. f. Allows the fund administrator to negotiate with individual claimants in regard to allocation disputes. g. Helps eliminate the risk of insolvency by the defendant or its insurer. h. Allows the plaintiff to earn interest on the funds while the money is in the Qualified Settlement Trust. In cases of large settlements, this can be a major advantage to the plaintiff and, in turn, prevents the defendant from earning interest on those funds until they are paid to the plaintiff. i. Subject to approval of the court, a Qualified Settlement Trust may pay attorneys fees as soon as proceeds have been delivered to the Trust. However, this process is not recommended in that it can create hard feelings by the plaintiff in regard to his/her attorney who has been paid while the plaintiff awaits his/her payment. 8

17 VII. CONCLUSION The role, duty and responsibilities of the guardian ad litem have been limited by Rule 173 TEX. R. CIV. P. and Supreme Court and Appellate Court decisions. Be that as it may, it is a rare settlement that will not appear to have an interest adverse to the minor or impaired person, justifying the appointment of a guardian ad litem. Furthermore, it is clear the parties can agree to the appointment of a guardian ad litem in such cases, providing protection to all involved through an independent, court-supervised set of eyes. The primary key to success with the appointment of a guardian ad litem whose job it is to be of service to the court, is for guardians ad litem not to abuse the privilege by attempting to charge unreasonable fees and expenses. If at all possible, the guardian ad litem and attorneys for the defendants should come to an agreement on the ad litem fee. The primary role of the guardian ad litem, especially where the plaintiff is pro se, is to ensure the best interests of the one being protected by the settlement and the distribution of the settlement proceeds. Depending on the size of the settlement, several vehicles for apportionment of the settlement funds are available and have been discussed. 9

18

19 ATTACHMENT A 11

20 FOR EDUCATIONAL USE ONLY Page S.W.3d 294, 56 Tex. Sup. Ct. J. 240 (Cite as: 390 S.W.3d 294) Supreme Court of Texas. FORD MOTOR COMPANY, et al., Petitioners, v. STEWART, COX, AND HATCHER, P.C. and Turner & Associates, P.A., Respondents. Motor vehicle manufacturer preserved for appellate review its challenge to guardian ad litem fee award in personal injury action fled by injured minor, where manufacturer objected to fee award at settlement prove-up hearing, and the trial court overruled objection. Rules App.Proc., Rule 33.1(a). No Jan. 25, Background: After a personal injury action was filed against motor vehicle manufacturer on behalf of injured minor, the 410th District Court, Montgomery County, K. Michael Mayes, J., sua sponte appointed guardian ad litem and subsequently awarded fees to guardian ad litem pursuant to settlement agreement. Manufacturer and next friend appealed. The Beaumont Court of Appeals, 350 S.W.3d 369, affirmed in part and reversed in part. Manufacturer and next friend appealed. Holding: The Supreme Court held that there was no apparent conflict of interest between next friend and injured minor to warrant sua sponte appointment of guardian ad litem. Reversed in part and remanded. ill Infants 211 ~1355 ill Infants 211 VII Actions West Headnotes 211 VII(D) Appeal and Review 211k1355 k. Preservation of grounds for review. Most Cited Cases ill Infants 211 ~ Infants Friend 211 VII Actions 211 VII(A) Role of Representative or Counsel 2llkl234 Guardian Ad Litem or Next 21lk1244 k. Compensation and expenses. Most Cited Cases Once appointed, the guardian ad litem has a limited role in the litigation and may be compensated only for certain types of activities. Vernon's Ann.Texas Rules Civ.Proc., Rule 173. ill Infants 211 ~1237(1) ill Infants 211 VII Actions Friend Cited Cases 211VII(A) Role of Representative or Counsel 21lk1234 Guardian Ad Litem or Next Infants 211 ~1246(1) 211 Infants 211 VII Actions 2llkl237 Appointment in General 21lkl237(1) k. In general. Most 211 VII(A) Role of Representative or Counsel 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 12

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