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The lawsuit was brought against a nursing home her mother was in by the family. The nursing home has agreed to settle with the family out of court. Can my sister refuse to receive her part of it?
Yes, she can, withdraw her name from the law suit. If there is no money placed in her account, she is good. Perhaps some consideration should be given, to have her portion invested in another family members name, so if she needs some funds later they are there for her, she can take small amounts at a time.
Caveat: my response is based on court rules for a specific jurisdiction, as they existed when I last worked in litigation, some decades ago. There may be specific rules in Deanna9's locale and state that should be consulted.
I don't think that "withdrawing" from a lawsuit is feasible at this point. There may be time limits on when parties (plaintiff or defendant) could be added or dismissed.
I believe that she would have to have filed a motion to dismiss as to her alone, and the court would have to act on that, issuing an Order to Dismiss her as Party Plaintiff.
Since the case has reached a settlement stage, I doubt that the Court would consider the need for anyone to withdraw, even if a specific Motion to Withdraw as a Party Plaintiff were to be filed.
An out of court settlement to me means that an agreement has been reached, the funds will be transferred to the plaintiffs' attorney for disbursement as a Stipulation to Dismiss is signed, (and the Plaintiffs acknowledge Receipt of the funds), then an Order to Dismiss is entered.
Your sister might be able to refuse, assigning (in writing) her portion to one of the other plaintiffs, but I'm not at all certain how this would be addressed in terms of the Releases, as she most likely would still have to acknowledge receipt of the funds, then transfer them.
Still, there could be residual issues since she would be "giving away" funds. I think Glad is right, that this could be considered gifting. And that would I assume affect her Medicaid qualifications.
I would consult 2 attorneys: first, the attorney who handled the suit on behalf of the Plaintiffs, to determine if there are any legitimate alternatives, and secondly, an elder law attorney practicing in the Medicaid field to address any alternatives, and how to handle notifications, etc. to the nursing home where your sister resides. You might also raise the feasibility of some kind of trust for the award, from which the nursing home's share would be deducted.
Better to be on the legal,safe side than to attempt any actions that might cause problems down the line.
I guess that I am glad that I live in Florida as I just did this for a cousin of mine. The settlement had already been reached, and as to his mental condition he was deemed incapable of agreeing to this settlement and his participation in this lawsuit was withdrawn.
GA the OP is More concerned with medicaid eligibility, not whether or not her mother can legally withdraw. She May or may not be able to withdraw at this point but even if she can, she could still lose her Medicaid. Medicaid doesn’t necessarily allow recipients to refuse a settlement.
Worried, I was just trying to provide some background on the issue of withdrawing as a Plaintiff. I do understand the Medicaid concern, but wanted to make it clear that withdrawal isn't an option that would apply at this point. Ergo, other options need to be considered, since the settlement portion will more than likely be paid and have to be addressed.
The Medicaid issue needs to be addressed "head on", but the withdrawal issue needed to be put aside as it's not an appropriate route to take.
Deanna, your sister can use her share of the settlement to help pay for her nursing home care, and then she can return back to Medicaid.
I would think it wouldn't be fair to the taxpayers who are paying for your sister's care if such money is available for her to use, but instead she "gifts" her share to other family members.
Deanna, if I'm understanding this discussion correctly: *if* your sister is "off" Medicaid for a while due to the settlement monies make sure she uses some of the funds to create a pre-paid funeral trust. Setting this up outside of Medicaid allows for a much higher protected amount. Once she's back on Medicaid it's less than $2K allowable (where I live anyway). The trust can ONLY be used for the funeral expenses that are designated by Medicaid rules as approved. Also deposit funds into the NH Resident's Trust account for your sister. They have a max amount, here it's $250.
By proceeding, I agree that I understand the following disclosures:
I. How We Work in Washington.
Based on your preferences, we provide you with information about one or more of our contracted senior living providers ("Participating Communities") and provide your Senior Living Care Information to Participating Communities. The Participating Communities may contact you directly regarding their services.
APFM does not endorse or recommend any provider. It is your sole responsibility to select the appropriate care for yourself or your loved one. We work with both you and the Participating Communities in your search. We do not permit our Advisors to have an ownership interest in Participating Communities.
II. How We Are Paid.
We do not charge you any fee – we are paid by the Participating Communities. Some Participating Communities pay us a percentage of the first month's standard rate for the rent and care services you select. We invoice these fees after the senior moves in.
III. When We Tour.
APFM tours certain Participating Communities in Washington (typically more in metropolitan areas than in rural areas.) During the 12 month period prior to December 31, 2017, we toured 86.2% of Participating Communities with capacity for 20 or more residents.
IV. No Obligation or Commitment.
You have no obligation to use or to continue to use our services. Because you pay no fee to us, you will never need to ask for a refund.
V. Complaints.
Please contact our Family Feedback Line at (866) 584-7340 or ConsumerFeedback@aplaceformom.com to report any complaint. Consumers have many avenues to address a dispute with any referral service company, including the right to file a complaint with the Attorney General's office at: Consumer Protection Division, 800 5th Avenue, Ste. 2000, Seattle, 98104 or 800-551-4636.
VI. No Waiver of Your Rights.
APFM does not (and may not) require or even ask consumers seeking senior housing or care services in Washington State to sign waivers of liability for losses of personal property or injury or to sign waivers of any rights established under law.
I agree that:
A.
I authorize A Place For Mom ("APFM") to collect certain personal and contact detail information, as well as relevant health care information about me or from me about the senior family member or relative I am assisting ("Senior Living Care Information").
B.
APFM may provide information to me electronically. My electronic signature on agreements and documents has the same effect as if I signed them in ink.
C.
APFM may send all communications to me electronically via e-mail or by access to an APFM web site.
D.
If I want a paper copy, I can print a copy of the Disclosures or download the Disclosures for my records.
E.
This E-Sign Acknowledgement and Authorization applies to these Disclosures and all future Disclosures related to APFM's services, unless I revoke my authorization. You may revoke this authorization in writing at any time (except where we have already disclosed information before receiving your revocation.) This authorization will expire after one year.
F.
You consent to APFM's reaching out to you using a phone system than can auto-dial numbers (we miss rotary phones, too!), but this consent is not required to use our service.
Withdrawing her name from the suit seems like it she should not have been included to begin with. Too late now.
Better check with an elder law attorney.
I don't think that "withdrawing" from a lawsuit is feasible at this point. There may be time limits on when parties (plaintiff or defendant) could be added or dismissed.
I believe that she would have to have filed a motion to dismiss as to her alone, and the court would have to act on that, issuing an Order to Dismiss her as Party Plaintiff.
Since the case has reached a settlement stage, I doubt that the Court would consider the need for anyone to withdraw, even if a specific Motion to Withdraw as a Party Plaintiff were to be filed.
An out of court settlement to me means that an agreement has been reached, the funds will be transferred to the plaintiffs' attorney for disbursement as a Stipulation to Dismiss is signed, (and the Plaintiffs acknowledge Receipt of the funds), then an Order to Dismiss is entered.
Your sister might be able to refuse, assigning (in writing) her portion to one of the other plaintiffs, but I'm not at all certain how this would be addressed in terms of the Releases, as she most likely would still have to acknowledge receipt of the funds, then transfer them.
Still, there could be residual issues since she would be "giving away" funds. I think Glad is right, that this could be considered gifting. And that would I assume affect her Medicaid qualifications.
I would consult 2 attorneys: first, the attorney who handled the suit on behalf of the Plaintiffs, to determine if there are any legitimate alternatives, and secondly, an elder law attorney practicing in the Medicaid field to address any alternatives, and how to handle notifications, etc. to the nursing home where your sister resides. You might also raise the feasibility of some kind of trust for the award, from which the nursing home's share would be deducted.
Better to be on the legal,safe side than to attempt any actions that might cause problems down the line.
The Medicaid issue needs to be addressed "head on", but the withdrawal issue needed to be put aside as it's not an appropriate route to take.
I would think it wouldn't be fair to the taxpayers who are paying for your sister's care if such money is available for her to use, but instead she "gifts" her share to other family members.
Thanks for sharing information on removing someone from a settlement disbursement.
I'm curious as to how it was accomplished. Was there a court order dismissing him as a party plaintiff? Or a letter from a doctor?