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When You Have that Uh-oh Moment

There is nothing worse than obtaining a great settlement for your client at mediation and then realizing that your client is not competent to accept the settlement and sign the necessary release and other documents. It can take 4-6 weeks to complete the incapacity phase of a mental health proceeding and have the Court appoint a guardian. Believe it or not, a pending mediated settlement is not viewed as an ’emergency’ in the eyes of the Probate Court to allow you to skip the formalities and get a guardian appointed that same week. We collaborate with you to keep your case moving forward timely. Here are some tips:

  1. Once you have done your due diligence to investigate the facts of the case, confirm liability and insurance, have your client’s family meet with and me at least 2 months before you attend mediation. * Depending on the circumstances we may need to initiate an emergency temporary guardianship. Example, if your client has traumatic brain injury or is in a state that prevents him/her from giving informed medical consent and from making financial decisions.
  2. Have the Guardian sign the necessary HIPAA authorization so you can contact Conduent (the Medicaid collection agency) to obtain the current Medicaid third-party liability lien prior to attending mediation.
  3. Bring a copy of the signed Letters of Guardianship with you to the mediation (and include it in your mediation statement).
  4. If the mediator prepares a mediated agreement at the mediation, request that under your client’s signature it indicate “John Doe, Guardian of Jane Doe.” Request that the agreement indicate it is subject to Court approval of the Probate Division.
  5. Contact me after the mediation to coordinate our efforts to prepare a petition to approve the settlement and determine whether it is necessary to seek the appointment of a guardian ad litem.
  6. If your client is competent when you first meet him/her refer them to me to prepare a legal plan (including a Durable Power of Attorney) so that if during the course of the litigation they become incapacitated you can avoid a guardianship.

I look forward to co-creating solutions with you and your clients for peace of mind.

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