Ottawa disabilities and estate planning lawyer Kenneth Pope says before signing off on the terms of settlement, plaintiff personal injury lawyers should ensure their clients won’t be disqualified from receiving Ontario Disability Support Program (ODSP) benefits.
“When someone has personal injuries from a motor vehicle accident, for example, years can go by before there’s a trial or settlement,” says Pope, who practices exclusively in the areas of special needs and disability estate planning. “So years later, when a settlement is imminent, it dawns on those involved — the personal injury lawyer and their client — that the plaintiff has been receiving ODSP benefits, which includes drug and dental coverage and other supports.
“On the face of it, the wording in a settlement could disqualify the plaintiff from continuing to receive benefits if they have assets of more than $5,000,” he tells AdvocateDaily.com.
Pope says the ODSP is administered by the Ministry of Community, Family and Children's Services and is available to those over 18 years of age who meet a very closely regulated set of criteria.
He explains the eligibility rules surround issues of assets and income of the person with the disability and their medical condition.
“The purpose of this program is to provide a basic level of income, prescription drugs and dental care to adults with disabilities,” he says. “For many people with disabilities, it’s important to maintain these benefits even though they are somewhat limited.”
If there’s a settlement offer, he says it’s crucial for the personal injury lawyer to have a discussion with the client about the form of the order on consent to ensure the wording in and of itself doesn’t disqualify ODSP benefits.
Pope says it’s usually at this stage in the process where he’s contacted by personal injury lawyers to assist with wording the settlements in ways that avoid the loss of these provincial benefits.
“Whatever the settlement is, we want to then exempt it from the asset test,” he says. “If this can be done, it’s a good arrangement for everyone involved so it’s certainly worth discussing before the final terms of the settlement are made.”
He says in many cases, if the settlement is worded properly, it becomes exempt from the asset test and the client can both accept the settlement and keep receiving the ODSP benefits they've been depending on.
“Personal injury lawyers know that the person can receive a pain and suffering settlement of up to $100,000, which is exempt,” Pope says. “And some know that if you can convince ODSP that all of the money is going to be earmarked for future care, that can also be exempted. Understandably, lawyers don’t want to deal with the hassle of the ODSP — they want to settle for their client and move on to the next file.
"That’s where I can assist,” he says.