Requiring Court Approval for Minors' settlements By Chris A. Milne (Massachusetts Lawyers weekly, February 12, 1996) It is sad and tragic that court approval for minors' settlements is not required in Massachusetts. The parties may seek court approval but are not required. Unfortunately, what happens all too often today is, when a case is settled for a minor, the money is squandered on a new car for the parents, a drug buy (it happens), a vacation, etc. Even when court approval is sought, there are no legal requirements to ensure that the money is properly handled and used for the benefit of the child; only the sound discretion of enlightened jurists ensures that the money is used to the fullest extent for the benefit of the injured child. Often these children come from indigent, overwhelmed families who are not able to make the settlement work for the child without proper assistance. Therefore, the child may not obtain his or her highest potential for education and vocation. There are, however, many conscientious judges who exemplify how the system can work when court approval is sought. For example, recently I presented a settlement for approval to the court for 8-year-old "Christy G." A trust was created with an independent qualified trustee to hold the money on the child's behalf. Throughout litigation, teachers and treating medical professionals had been consulted and their advice was taken into account in how the settlement proceeds should be handled. Some of the $2 million obtained for this child was paid up front to be held in trust, and the remaining funds were utilized to purchase an annuity for monthly payments into the trust. All of the important safe-guards that previous judges had requested in settlements that I had presented were taken into account - or so I thought. Despite my efforts, Suffolk Superior Court Judge David M. Roseman found some flaws in our attempt to protect the child's future. He 'requested,' among other things, periodic accounting to the court and a better provision for a successor trustee. With these changes made, the settlement was finally approved. The legal system worked and worked well for this child. I continue to serve as an advisory trustee without compensation (to be compensated would raise an appearance of conflict). Christy G. is receiving needed special education and her housing is no longer substandard -none of this at the taxpayers' expense. An appropriate change in Massachusetts law would require that minors' settlements work similarly for all children. I propose that the Massachusetts Legislature enact the following statute: "In the event a claim for damages is settled by or on behalf of a minor, the Trial Court shall review and approve the settlement. The Court shall ensure that, to the fullest extent possible, any learning disabilities or deficits are remediated, or other needs of the child are met, through the mandated use of the settlement funds to supplement, as is reasonably necessary in the Court's discretion, available educational and medical testing and services for the minor by the means of the appropriate use of trusts, structured settlements and/or guardians ad litem. The intent of this section is to ensure that the child will, to the fullest extent medically and educationally possible, succeed in school and attain his or her highest vocational capacity through properly controlled use of the settlement funds. The Court shall require that any reports which concern or relate in any way to the child's developmental status be filed with the Court and provided to the child's current school and physician. The Court may in its discretion maintain jurisdiction over the settlement until the child reaches the age of eighteen with periodic reviews to ensure that the terms of the settlement order and/or settlement trust are being fulfilled. If the child has received any special education services from a public school, the school shall be notified of the pendency of the claim by the child or his or her representative and shall be reimbursed from the settlement for the reasonable cost of any such services, the need for which was proximately caused by the child's injury, The schools' lien shall be offset by its pro-rata share of any attorney's fees and expenses paid by the child. The Court shall have the authority to order a compromise of the school's lien in its discretion." The inspiration for this proposal arose from appearances before judges sitting from Berkshire County to the Boston Housing Court who have challenged myself and other attorneys requesting approval of settlements involving minors. On a daily basis, these jurists act diligently to achieve what the above statute would require for all minors' settlements. In this time of government downsizing, enactment of this statute would be a significant step towards supplementing and in many instances, supplanting, the strained resources of the 766 Program, Social Security Disability and Medicaid. The enactment of this statute would provide a significant opportunity for empowerment of both the child and his or her family. Published with permission of Lawyers Weekly