Mediations that involve individuals with disabilities that are subject to a guardianship present unique legal challenges. (But, please, this blog does not apply for a mediation involving a person with a disability that does not have a guardian.) In order to have a successful mediation, the parties and mediator need to address three important details.

Make sure that the right people attend the mediation.

This would seem to be obvious but is often an overlooked fundamental step. The person with a mental disability that needs the appointment of a guardian and the conservator would necessarily require that the guardian or conservator attend the mediation. In Minnesota, a guardian has legal authority to make decisions about the person; a conservator makes decision about the ward’s assets.  The guardian or conservator should be present at the mediation because only they are vested with the legal authority to make the decision on behalf of the ward.

In many cases, there will be more than one guardian appointed. For example, often parents are appointed as the guardian for their child, now adult, with disabilities. A successful mediation will involve both guardians in attendance or an arrangement before the mediation that the attending person will have full authority to make decisions. Each case will be different, but often it is important to allow the person with disabilities to be involved and have input as to the decisions being made at the mediation. However, only the person with the proper legal authority will be required to sign the successful settlement agreement.

Have a good social worker available to answer questions.

The person that has a guardian or conservator in place is likely also receiving some type of governmental assistance. A settlement will be influenced and must contemplate the effect of the settlement on the receipt of that governmental assistance. A good social worker (emphasis on “good”; in other words, knowledgeable) should either attend the mediation or be available by telephone to answer questions about the effect of any settlement proceeds upon the eligibility to continue receiving governmental assistance.

More than likely Medicaid benefits will be involved. One significant governmental benefit which is available only through Medicaid is long-term care which includes care for the physically disabled and the mentally disabled. To qualify for Medicaid benefits, the applicant must be “poor” and there is a limit to the assets which can be owned. The asset guideline for Supplemental Security Income (SSI) apply as well for Medicaid and allows the individual to own no more than $2,000 in assets and a married applicant to own no more than $3,000 in assets. Certain assets are specifically exempted, and a good social worker would be able to help address those issues at mediation.

Some settlements will use a supplemental needs trust to avoid losing governmental benefits. Under the provisions of 42 U.S.C. § 1396p(d)(4)(A), a supplemental needs trust will not be counted as a Medicaid asset even when it is funded with the individual’s own assets. The requirements for the trust are that the individual must be under age 65 at the time the trust is created (and funded), and disabled under the definition for social security benefits. The trust must be for the sole benefit of the individual with disability. One other consideration is that, upon the death of the individual, the state Medicaid agency must be reimbursed for the costs of the medical assistance which was provided by Medicaid during the individual’s lifetime. This is often called the “payback” provision. As Ben Franklin noted, the only things certain in life are death and taxes (and the government gets repaid).

Obtaining court approval post-mediation.

One final important detail that is unique to cases involving individuals with disabilities subject to a guardianship may include court approval of the settlement. Settlements involving persons that are considered legally incompetent must be brought to a judge. Under Minnesota law, these settlements are only valid and enforceable after receiving court approval. Minnesota rules require cases involving personal injuries to be brought to the court for approval by the guardian, and present sufficient information that the court is able to determine whether the settlement is appropriate.

Minnesota General Rule of Practice 145 sets forth in detail the process. There is a required hearing and the court order must specifically address a number of issues. Of those issues, the court requires that structured settlements be backed by companies licensed to do business in Minnesota, have an excellent financial rating, and has complied with other specific provisions of Minnesota law.

In some circumstances, it may be appropriate to have a professional conservator in place. There are a variety of banks and trust organizations that are available to provide these services. These services would be responsible for complying with filing annual reports with the court confirming how the money has been managed and spent.

These three details are important to a successful mediation involving individuals with disabilities subject to a guardianship. Mediations involving individuals with disabilities present their own unique and complex issues and paying attention to these three issues will make for a successful resolution.