Law school professor Karen Syma Czapanskiy’s recent law review article advocates a ban on transfers of structured settlement payment rights when the payee is a lead poisoning victim.
She also makes a number of other thought-provoking comments in her article is entitled “Structured Settlement Sales and Lead-Poisoned Sellers: Just Say No”, appearing in the Virginia Environmental Law Journal (36 Va. Envtl. L. J. 1).
Professor Czapanskiy, a professor at the University of Maryland School of Law, wrote about the prevalence and long-term human impact of lead poisoning. She also compared the position of a structured settlement payee with lead poisoning to an injured worker who is entitled to receive workers’ compensation, and notes the similarities but also some key differences. In addition, she points out how, under Maryland law, a parent of an incapacitated person may have a duty to care for such a person, and how conservatorships can be inadequate for address such situations. These facets of the lead poisoning victim’s circumstances are important considerations in making public policy decisions concerning the autonomy of such victims, she indicates.
Among Professor Czapanskiy’s comments are the following.
- Prevalence and Long-Term Impact of Lead Poisoning: Thousands of children each year are exposed to lead” in paint, water pipes, and soil. Such lead poisoning “is irreversible” and can “damage children in areas of cognition, behavior, and executive functioning.” Importantly, executive functioning problems are necessary to make a decision to sell an asset such as structured settlement payments. “Many lead-poisoned children experience problems with ‘higher level’ functions of planning and problem solving.”
- Comparison with Workers’ Compensation. Lead poisoning victims are “exploitable”, while workers’ compensation recipients may or may not be. “A person may receive worker’s compensation for any injury related to employment; the injury need not be one that affects the worker’s cognition or executive functioning in a way that may reduce the worker’s capacity to evaluate the costs and benefits of an offer to sell the income stream.” The same cannot be said “where the seller’s income stream arises out of childhood lead poisoning that left the seller incapable of self-support” when the seller “is far less likely than most people to have the capacity to make a reasoned judgment about selling an income stream and perhaps more likely to fall for a deceptive pitch by a potential buyer.” This means “the case for banning the sale is even stronger in childhood lead poisoning cases than in worker’s compensation cases.”
- Duty to support adult children: “In Maryland, the duty of support to an adult child is limited to those adult children who lack a means of subsistence so long as the reason the child cannot be self-supporting is a result of a mental or physical infirmity. . . . Failure to provide support is a misdemeanor punishable by a fine or imprisonment.”
- Guardianship May Be Inadequate: “[M]any people with the deficits typical of lead poisoning may not meet the criteria for the appointment of a guardian.” Maryland law provides that guardianship of the property is authorized for persons who are unable to manage their property and affairs effectively due to physical or mental disability. A structured settlement payee “may have no problem handling a paycheck, paying rent, or buying food” but, for that person, “[p]roperty management issues are likely to become acute only when the person is facing longer-term and more complex decisions” such as decisions concerning transfers of structured settlement payment rights. “Since most people do not confront such issues on a routine basis, a court could find that a guardianship of the property is not justified.”