Canadian Lawyer

June 2020

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www.canadianlawyermag.com 47 funding for care needs," says Bergmanis. "I mean, I think the market rates aren't great in terms of investments. And I know that the returns on structures also aren't great in these times. But you still buy that security and that protection. . . . I think it's still a wise investment, a wise move." Baxter and Mullin also contend that struc- tured settlements offer their own perks — particularly during economic downturns. "I ride waves in my industry. Sometimes, structures are booming, and sometimes, it's slower seasons," says Baxter. "I've had casualty companies call me that said, 'Hey, Kyla, how are the rates? Should we still be pushing struc- tures?' And interestingly enough, when they called me [about] the first question, I think the insurance companies themselves also have casualty insurance to keep payments going. Henderson also says that, while "the inter- est rate of a structured settlement mirrors" bonds and other low-risk investments, there is also no fee for the management of struc- tured settlement funds (since it's the insurer that pays the commission). "When the pandemic first started to affect the markets, our client services department was getting a lot of calls from existing struc- tured clients, who are happy to find us able to reassure them that, 'nope, this market turmoil does not affect your payment.' The structured settlement that was implemented last year, 10 years ago, 30 years ago, is still continuing to pay, still safeguarded, still tax free. We're getting a lot more calls for reassur- ance from our existing structured settlement clients," says Mullin. While the settlement can't be put in anyone else's name, the payments can go to a named beneficiary if they exceed the claimant's lifetime. "What I say to my clients is exactly what we're living in today: 'Are you going to be OK on your very worst day?'" says Baxter. "Anything else is gravy, but I tell my clients all the time, whatever you can afford to earn, you have to on the flip side be able to afford to lose." Baxter says there are ways to be creative with structured settlements to cope with the post-COVID-19 market. One way is to diver- sify or to go with a shorter-term annuity so the money can be invested later, when the market has bounced back. (She notes that a minimum of five years is needed before it will show any significant return.) Payments can be made as percentages of the settlement, indexed or can ramp up by a fixed amount over a fixed period. The negotiation process also allows for money to be set aside for emergency funds, vehicle replacement and education savings. "It's just about being creative in this market," says Baxter. "Sometimes, structure brokers can think outside the box where maybe the lawyers and the claimant may not have before." first 10 days of this — working from home and the lockdown started in Ontario — we were having rates improve every single day." Social programs such as Canada Child Benefits, income tax returns and payments from the Ontario Disability Support Program aren't adversely affected by a structured settle- ment, notes Mullin, who says that rate watch- ing doesn't always account for the benefit of having the tax-free money coming in. As Henderson Structured Settlements LP notes on its website, companies that back structured settlements also have protec- tions against default, namely through capital requirements and rules that they be federally registered, have assets in excess of $25 billion and have a high insurance rating. The life "Whatever you can afford to earn, you have to on the flip side be able to afford to lose." Kyla Baxter, Baxter Structures

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