OTLA Trial Lawyer Winter 2022

25 Trial Lawyer • Winter 2022 benefits, Supplemental Nutrition Resource Program (SNAP, formerly food stamps), Temporary Assistance for Needy Families (TANF) or other means tested public benefits, the fiduciary should be familiar with eligibility requirements to effectively manage the settlement funds. A first party SNT is required to maintain eligibility for these and other benefits. 42 USC 1396 p(d)(4)(A). Court approval to establish the SNT is required. By the time we sought court approval of Kayla’s settlement, she was receiving a number of needs-based benefits due to her disability. It is not always as clear as this in sex abuse cases, especially of young children. The extent of the trauma may not become apparent until after puberty. It may be necessary to establish the SNT post settlement but prior to the child attaining majority. Approving settlement A comprehensive pleading is submitted containing the necessary information to approve the settlement, attorney fees and costs, establishment of the SNT or support trust, if not established earlier, and additional information required under UTCR 5.080, ORS 125 and the various Supplemental Local Rules. If any portion of the settlement is structured, court approval is required. To preserve future benefits, structured payments and unstructured lump sums must be payable to the trustee of the SNT. In order to save on bond costs, the order must recite the amount of the settlement that will be unrestricted, with the remainder restricted, without bond. For Kayla, we obtained cour t approval for our combined petition to appoint a conservator, approve the settlement and attorney fees, establish and fund Kayla’s SNT, fund a structured settlement annuity to begin $3,500 lifetime tax free monthly lifetime payouts at age 18 for college and set initial bond on $100,000 while restricting $1.6 million. After extensive research of Portland area school systems, we purchased aWest Linn home for Kayla and her guardian. Our research indicated that the West Linn School District had the highest level of trauma-informed teachers, counselors and staff. They exceeded our expectations. At first, Kayla displayed academic difficulties and behavioral outbursts at school. Over the course of the school year, she began to settle down, make friends and improve academically. Team meetings every other week with the father and eventually, the neighbor, nurse case manager, LCSW and our staff team resulted in the first extended period of stability in Kayla’s life. Quality of life We are now four years post settlement. Kayla continues to live with her permanent guardian in the same West Linn neighborhood. A multidisciplinary team supports her continued development and stability. She is doing well in school and continues to benefit from individual psychotherapy. As conservator, we began a dollar cost averaging investment strategy recommended by the investment fiduciary. The trust corpus has grown to $2.1 million in spite of distributions of $600,000. If trauma related comorbidities do not derail her progress, she has the economic resources to launch a living wage career following high school graduation. If not, her structured settlement annuity payments and SNT will provide her with a better quality of life than many minors who have experienced similar traumas. This case study presents significant post settlement challenges to mitigating the trauma of childhood sexual abuse. Kayla faces a lifetime of coping with the effects of sexual abuse. Nonetheless, she seems to be defying the odds and may yet enjoy a life not defined by trauma. She will be in a better position to do so than the many victims who receive no settlement at all. Shannon Conley andTimNay are partners at Nay and Friedenberg LLC, specializing in injury settlement planning, special needs law, conservatorships and guardianships, wrongful death and other probate matters, estate planning and elder law. Nay and Conley both contribute to OTLA Guardians at the Sustaining Member level. Conley is a member of the 2021/2022 OTLA Leadership Academy. Their office is located at 6500 S. Macadam Ave., Ste. 300, Portland, OR 97239. They can be reached at 503-245-0894 or shannon@ naylaw.com, tim@naylaw.com. A graphic from the CDC and the American Journal of Preventive Medicine illustrates the potential influences throughout the lifespan of adverse childhood experiences.