Articles Posted in Settlements


ERISA liens on child settlements are not always required to be paid, and our firm is here to help. At Florida Probate Law Group, we strive to deliver child injury settlements free from unnecessary liens in order to maximize your client’s recovery. Burdensome ERISA liens in child injury cases are vulnerable to being negated through settlement apportionment during the local court approval process. Federal courts have recognized the authority of state probate courts to protect child injury settlement funds, even when healthcare providers argued lien preemption based on strong subrogation language within the subject ERISA plan. See In The Matter of the Guardianship of O. D. v. The Ashley Healthcare Plan, No. 3:2011cv00146 – Document 17 (N.D. Miss. 2013); Bauhaus USA, Inc. v. Copeland, 2001 WL 1524373 (N.D. Miss. Mar. 9, 2001).

Healthcare providers seeking to enforce liens in federal court have even been forced to pay attorney’s fees after having their actions dismissed. In 2015, the Mississippi Supreme Court allowed attorney’s fees to be levied against a healthcare provider for their frivolous federal action to enforce an ERISA lien that had been negated by the local probate court. In the Matter of the GUARDIANSHIP of O.D., A Minor: Ashley Healthcare Plan v. Michael DILLARD and Kimberly Dillard, 177 So.3d 175 (2015). The thought of a healthcare provider seeking enforcement of an ERISA lien in federal court, only to wind up with an bill for the defendant’s attorney’s fees, will give pause to future lien holders in the same scenario.

Injured children and their attorneys should be encouraged by the limitation of ERISA preemption by federal courts. State probate courts wield the power to diminish or erase ERISA liens in child injury cases. In the court approval phase of a child injury case, Florida Probate Law Group will always seek an order apportioning the minor’s settlement to the maximum advantage of the minor. Our firm works statewide, on a flat fee basis, with no fees or costs up front. Click here for a breakdown of child injury rules in Florida. Should you have a question about a specific case, call (352) 354-2654 or email

Special needs trusts for injury settlements can be a life saver for your clients. Recipients of need based government benefits require special consideration when receiving settlements in personal injury cases. A sudden influx of cash will leave a Medicaid/SSI recipient ineligible for benefits, resulting in a quick evaporation of their settlement funds as medical treatments and services previously paid by the state are now paid directly from the client’s pocket. However, a Special Needs Trust (AKA Supplemental Needs Trust) can be a Medicaid beneficiary’s best friend, avoiding the scenario described above. Funds placed into a Special Needs Trust are not countable assets for government benefit eligibility. Thus, a client may place their settlement funds into a Special Needs Trust, and maintain government benefits. Trust funds may be used for extra services and luxuries not provided for by Mediciad and SSI. Trust funds may NOT be used for food, shelter, property taxes, fuel, or utilities.

Special Needs Trusts for Injury Settlements – Eligibility

MedicaidFor an individual to be eligible for a special needs trust in Florida, they must be under 65 years old and disabled as defined in as defined in section 1614(a)(3) of the Social Security Act. For clients over the age of 65, a Pooled Trust under 42 USC 1396p(d)(4)(c) is appropriate. Here, we will address trusts for individuals under 65 funded through a personal injury settlement. In considering whether a client is disabled, the Social Security Act informs us that disabled means “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” Fortunately, this determination has already been made in most cases. Any client receiving SSI benefits in Florida has been determined as disabled under this definition.

PiggybankChild settlements requiring a guardian ad litem in Florida can slow down the resolution of a case, however it is possible to have this requirement waived. In many child injury claims, it is within the court’s power to require a guardian ad litem to submit an opinion on the adequacy of a proposed settlement. While the intention of this rule is good, securing a GAL report may be redundant and can sometimes be avoided. Although Florida Statute section 744.3025(1)(b) provides that a guardian ad litem (GAL) is to be appointed when a minor’s settlement equals or exceeds $50,000.00, section 744.3025(1)(e) dispenses of the requirement if a guardian of the minor is appointed and the guardian has no potential adverse interest.

Because minor settlements netting more than $15,000.00 to the minor already require a guardian of the property (a different role than a GAL) to be appointed, the exception contained in section 744.3025(1)(e) is applicable more often than not. Section 744.3025(1)(e) reads as follows: “A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.”

Thus, when a guardian of the property with no adverse interest to the minor is appointed to facilitate the settlement, the court may waive the requirement for a GAL.

Holding HandsIndividuals lacking the capacity to execute legal documents cannot sign releases settling claims against tortfeasors. Sometimes, families of developmentally disabled adults will execute Powers of Attorney to facilitate day to day transactions made on behalf of their disabled relative. Unfortunately, those Powers of Attorney are not legally valid, as the disabled principal lacks the requisite competency to execute the document. Therefore, you should not rely on Powers of Attorney in settling cases for adults with developmental disabilities.

Instead, the disabled individual’s family must secure legal guardianship before executing a release on behalf of their disabled family member. This process has the tangential benefit of providing actual legal authority for the family to make financial, residential, and medical decisions on behalf of the ward. Once guardianship is secured, the guardian should re-sign your fee agreement in their official capacity, and may then execute a settlement release.

Our firm has experience working with families to make the guardianship process painless and efficient. Call (352) 354-2654 or email anytime regarding guardianship or probate issues affecting settlements in the state of Florida.

In a previous blog article, I opined on the importance of identifying and signing up the future personal representative of a decedent’s estate when accepting a wrongful death case. However, you may find yourself in a position where the future personal representative has retained another firm, while a separate survivor entitled to damages seeks to hire your firm as their individual counsel. Such a case, while not ideal, could nonetheless be profitable.

PieWhile Florida’s Wrongful Death Act does not allow individual survivors to file separate wrongful death actions (only the personal representative has authority to file), Florida case law provides a right for individual survivors to hire separate counsel, and entitles that outside attorney to be compensated from the settlement based on their contribution to the prize. Wiggins v. Estate of Wright, 850 So. 2d 444, 446 (Fla. 2003);Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011).

The above cited cases state that when survivors hire separate attorneys, they lose “commonality of interest,” and each attorney may be entitled to a separate fee. Under Wagner, “in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each.”

Orange and AppleOur firm is sometimes brought into a case after another probate/guardianship firm has begun the estate administration or guardianship process, but has not been able to competently usher a settlement through the various obstacles associated with child injury and wrongful death cases in Florida. I have been shocked by “normal” probate attorneys neglecting to protect the interests of plaintiff’s firms, despite the work of the plaintiff’s firms to create windfall settlements benefiting the estate or injured child. Probate firms with practices comprised of mostly non-settlement related cases may not have the requisite knowledge of Florida’s statutory settlement schemes and related case law to:

  1. Protect settlements from creditors
  2. Ensure efficient settlement approval

Florida Probate Law Group has facilitated millions of dollars in wrongful death and child injury settlements. Why do injury attorneys turn to us to handle these important issues?

Protecting Client Funds

We are experienced in defeating liens and claims in wrongful death cases. Sometimes, plaintiff’s attorneys ask us “are you sure this is legal?” the first time we neutralize a five or six figure threat to a pending settlement. We assure you it is not only legal, but part of our professional and ethical responsibility towards the settlement recipient. Read more about that process here.

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