The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING APPROVAL OF THE PROPOSED SPECIAL NEEDS TRUST SUBJECT TO CERTAIN AMENDMENTS AND ADDITIONS, INCLUDING CONTINUED COURT SUPERVISION UNDER THE CALIFORNIA PROBATE CODE (Doc. 195)
Minor Plaintiff Christina Romar, by her mother and legal representative Cora Romar, has moved for an order approving the creation and funding of a special needs trust for the settlement proceeds in this case. This matter has been referred to the magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. Following its review of the extensive briefing and argument regarding the form and implementation of Plaintiff's special needs trust, this Court recommends approval of the trust form conditioned on certain amendments including a provision for continued court supervision under the California Probate Code.
I. Factual and Procedural Background
On November 24, 2003, Plaintiff filed a complaint seeking damages under the Emergency Medical Center and Active Labor Act, 42 U.S.C. § 1395dd et seq. ("EMTALA"). Plaintiff alleged that, on three occasions when Christina was seen in the emergency room for a virulent infection, Defendants Fresno Community Hospital and Medical Center, and Dr. Thomas Mansfield failed to provide an appropriate screening examination and stabilizing emergency medical treatment comparable to that provided to similarly situated patients, resulting in Christina's experiencing a serious systemic infection and significant respiratory and cardiorespiratory complications. Christina was left with chronic infections and other resulting chronic diseases, and is permanently disabled.
For the most part, details of the intervening procedural history are not relevant to this motion. On March 21, 2007, the Court granted summary judgment in favor of Dr. Mansfield (Doc. 136). On December 4, 2008, Plaintiff and Defendant Fresno Community Hospital agreed to a settlement (Doc. 178).
Plaintiff proposes to deposit the settlement funds to which Christina is entitled into a special needs trust (Doc. 183-2). On March 11, 2010, Plaintiff filed a petition for an order approving the creation and funding of a special needs trust (Doc. 195). This Court heard the motion on April 2, 2010: Kevin G. Little appeared on behalf of Plaintiff, and Jacqueline Yates, Stammer, McKnight, Barnum & Bailey, LLP, appeared on behalf of Defendant Fresno Community Hospital and Medical Center. The Court twice requested supplemental briefing, which the parties provided along with an amended form of the trust dated May __, 2010 [sic] (Docs. 197-204).
II. Compliance With Court Rule 7.903(c)
The principal matter of concern at the April 2, 2010 motion hearing was the trust's omission of certain of the so-called "override provisions" set forth in California Rule of Court 7.903(c). In pertinent part, the rule provides as follows: Except as provided in (d) [governing only trusts with total assets of less than $20,000], unless the court otherwise orders for good cause shown, trust instruments for trusts funded by court order must:
(4) Prohibit investments by the trustee other than those permitted under Probate Code section 2574;
(5) Require persons identified in (3) [trustee or other person with authority to direct trustee to make disbursements] to post bond in the amount required under Probate Code section 2320 et seq.[setting forth calculation];
(6) Require the trustee to file accounts and reports for court approval in the manner and frequency required by Probate Code sections 1060 et seq. and 2620 et seq. [chapters governing format and contents of accounting and reports];
(7) Require court approval of any changes in trustee and a court order appointing any successor trustee;
(8) Require compensation of the trustee, the members of any advisory committee, or the attorney for the trustee, to be in just and reasonable amounts that must be fixed and allowed by the court. The instrument may provide for periodic payments of compensation on account, subject to the requirements of Probate Code section 2643 and rule 7.755.
Although Plaintiff's subsequent amendment of the trust addresses certain of these concerns, the Court remains concerned about the implementation of the trust for Christina's benefit and ...