Court approved protocol

Claims Where One or More Family Member and/or
Dependant Is a Minor or a Mentally Incompetent Adult

Table of Contents

• Documentation Required
• Death Prior to January 1, 1999
• Death on or after January 1, 1999
• Notes Applicable to Some of the Provisions of this Protocol

DOCUMENTATION REQUIRED
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Documentation required for Claims under Section 5.01(2) or 6.01 of the Transfused HCV Plan or the Hemophiliac HCV Plan or Section 5.01(4) of the Hemophiliac HCV Plan

1. In addition to any other forms or documentation the Administrator may require, where any Family Member and/or Dependant is a minor or a mentally incompetent adult and a Claim is made pursuant to Section 5.01(2) or 6.01 of either Plan or Section 5.01(4) of the Hemophiliac HCV Plan, the Administrator shall obtain the following prior to allocating or paying the compensation provided for under that Section:
   

1. a declaration signed by each Family Member and/or each Dependant (or, in the case of a minor or a mentally incompetent adult, his or her Personal Representative):

1. providing the name, address and birth date of every living Family Member and/or Dependant who is:
   
   1. a Spouse, Child, Parent, Sibling, Grandparent or Grandchild of a deceased HCV Infected Person; and
   2. a former spouse of the deceased HCV Infected Person to whom the HCV Infected Person was providing support or was under a legal obligation to provide support on the date of the HCV Infected Person's death;
      
2. stating that the declarant does not know of any such Family Member and/or Dependant other than those listed; and
   
3. identifying each listed Family Member and/or Dependant who is a minor or a mentally incompetent adult, and providing a copy of any guardianship or committee order in respect of such person;

2. where a Dependant is a minor or a mentally incompetent adult, a completed Loss of Income/Support or Loss of Services Claim Form; and
   
3. any further information the Administrator may require pursuant to Section 3.04(6) or 3.05(6) of the applicable Plan, such as a family budget.

DEATH PRIOR TO JANUARY 1, 1999
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Compensation under Section 6.02 of the Transfused HCV Plan or the Hemophiliac HCV Plan (HCV Infected Person died prior to January 1, 1999)

2. Unless the Approved HCV Personal Representative and all of the Family Members and/or Dependants (or, in the case of a minor or a mentally incompetent adult, his or her Personal Representative) of the deceased HCV-Infected Person having claims under the applicable Plan agree to elect the $120,000 fixed payment pursuant to Section 5.01(2) of either Plan or the $72,000 fixed payment pursuant to Section 5.01(4) of the Hemophiliac HCV Plan, the Administrator shall allocate and pay compensation to each Approved Family Member in accordance with Section 6.02 of the applicable Plan, subject to the Procedure-Payments to Minors and/or Mentally Incompetents.

Compensation under Section 6.01(1) of the Transfused HCV Plan or the Hemophiliac HCV Plan (HCV Infected Person died prior to January 1, 1999)

3. Unless the Approved HCV Personal Representative and all of the Family Members and/or Dependants (or, in the case of a minor or a mentally incompetent adult, his or her Personal Representative) of the deceased HCV-Infected Person having claims under the applicable Plan agree to elect the $120,000 fixed payment pursuant to Section 5.01(2) of either Plan or the $72,000 fixed payment pursuant to Section 5.01(4) of the Hemophiliac HCV Plan, the Administrator shall:

1. allocate loss of support as follows:
   
1. one-third to common expenses and two-thirds to exclusive expenses;
   
2. an equal share of common expenses to each Approved Dependant, examples of which are set out on a percentage basis in the following chart:
    
   
    
    
3. a share of exclusive expenses to each Approved Dependant calculated in accordance with the equations provided in subparagraph 3(a)(iv) below, with the result that exclusive expenses for an Approved Dependant who is an adult shall be 1.5 times the exclusive expenses for an Approved Dependant who is a minor, examples of which are set out on a percentage basis in the following chart:
    
   
    
    
4. the following equations shall be used to calculate the allocation of exclusive expenses:
    

   S =	loss of support
   A =	the share of exclusive expenses for each adult who is an Approved Dependant
   M =	the share of exclusive expenses for each minor who is an Approved Dependant
   na =	number of adults who are Approved Dependants
   nm=	number of minors who are Approved Dependants
   M =	4S	A =	2S
   	3 (3na + 2nm)		(3na + 2nm)

5. if an Approved Dependant does not agree with the Administrator's allocation of the loss of support, he or she must file a Request for Review in accordance with the Protocol-Rules for Arbitration/Reference. Fund Counsel shall provide a copy of any Request for Review to the appropriate Public Guardian and Trustee and/or Children's Lawyer. Thereafter the Administrator shall allocate loss of support as directed by the Arbitrator, Referee or Court once the award, report or order is final;
2. where no review of the allocation of loss of support is taken or following a review of the allocation of loss of support once the award, report or order concerning allocation of loss of support is final, the Administrator shall pay loss of support in accordance with the allocation as follows:

1. for each Approved Dependant who is a mentally incompetent adult, his or her share of the common expenses and the exclusive expenses to the Personal Representative legally appointed to manage his or her financial affairs, subject to subsection 3(b)(viii) below;
2. to each Approved Dependant who is a mentally competent adult, his or her share of the exclusive expenses;
3. to each Approved Dependant who is a mentally competent adult and who does not reside in the same household with Approved Dependants who are minors, his or her share of the common expenses;
4. subject to subparagraphs 3(b)(vi) and 3(b)(vii) below, for those Approved Dependants who are mentally competent adults who reside in the same household as Approved Dependants who are minors, the adult's share of the common expenses and the minor's share of the common expenses and the exclusive expenses, to the adult member of the household who provides an undertaking to the Administrator that:

1. the common expenses will be used for the benefit of all Approved Dependants resident in the household;
2. the exclusive expenses for each Approved Dependant who is a minor in the household will be used for his or her direct benefit; and
3. the Administrator will be notified if there is a material change of circumstances in the household, such as the departure of an Approved Dependant from the household;

5. subject to subparagraphs 3(b)(vi) and 3(b)(vii) below, for those Approved Dependants who are minors who do not reside in the same household with an Approved Dependant who is a mentally competent adult, each minor's share of the common expenses and the exclusive expenses to the person with care and control of the minor on that person's undertaking to the Administrator that:

1. the monies will be used for the benefit of the minor; and
2. the Administrator will be notified if there is a material change of circumstances in the household, such as the departure of the minor from the household;

6. if at any time the Administrator has a concern that the undertaking in subparagraph 3(b)(iv) or 3(b)(v) above is not being complied with or that the circumstances in the household have changed so that payment to the adult member of the household or the adult with care and control of the minor who provided the undertaking is no longer reasonable, the Administrator shall reassess and recalculate the allocation of compensation if necessary and/or adjust payment of the compensation for loss of support accordingly, and in so doing shall in its discretion, direct or redirect payments to any person, who in the Administrator's opinion is best qualified to administer the payment on behalf of an Approved Dependant who is a minor including, if appropriate, the Public Guardian and Trustee or the Children's Lawyer; and
   
7. notwithstanding the provisions of subparagraph 3(b)(iv) or 3(b)(v) above, the Administrator retains the discretion to pay the common expenses and the exclusive expenses for an Approved Dependant who is a minor to the person who in the Administrator's opinion is best qualified to administer the payment on behalf of the Approved Dependant who is a minor including, if appropriate, the Public Guardian and Trustee or the Children's Lawyer; and
   
8. if at any time the Administrator has a concern that the share of the common expenses and/or the exclusive expenses of the Approved Dependant who is a mentally incompetent adult are not being used for his or her benefit, the Administrator shall withhold those payments and notify the appropriate Public Guardian and Trustee through Fund Counsel. The Administrator shall recommence making payments in the manner and at the time directed by the appropriate Public Guardian and Trustee or by order of the Court.

Compensation under Section 5.01(2) (HCV-Infected Person died prior to January 1, 1999)

4. If the Approved HCV Personal Representative and all of the Family Members and/or Dependants (or, in the case of a minor or a mentally incompetent adult, his or her Personal Representative) of the deceased HCV-Infected Person having claims under the applicable Plan agree to elect the $120,000 fixed payment pursuant to Section 5.01(2) in full satisfaction of all their Claims (including all potential Claims pursuant to Article Six), the Administrator shall:

1. accept an election pursuant to Section 5.01(2) of the applicable Plan, provided that any Approved Family Member who is a minor or a mentally incompetent adult is not also a Dependant and that the sum of all of the amounts which would have been payable had claims been made pursuant to Section 6.02 of the Plan is less than $70,000, and allocate and pay the compensation, subject to the Procedure-Payments to Minors and/or Mental Incompetents, as follows:

1. $50,000 to the Approved HCV Personal Representative on behalf of the estate of the HCV Infected Person who has died;
   
2. to each Approved Family Member, the amount to which he or she would have been entitled pursuant to Section 6.02 of the applicable Plan, and such payments shall be a first charge against the $70,000; and
   
3. where the Approved Family Members who received amounts under subparagraph 4(a)(ii) above comprise the entire group of Approved Family Members and Approved Dependants, the remainder of the $70,000 to each Approved Family Member on a pro rata basis, calculated in accordance with the equation provided in subparagraph 4(a)(v) below; or
   
4. where there is one or more Approved Dependant who would not have been entitled to a payment under Section 6.02 of the applicable Plan, the remainder of the $70,000 to each Approved Dependant and/or Approved Family Member as they shall all agree, provided that no Approved Family Member who is a minor or a mentally incompetent adult shall receive less than his or her pro rata share of the remainder of the $70,000, calculated in accordance with the equation provided in subparagraph 4(a)(v) below; and
   
5. the following equation shall be used to calculate the allocation of the remainder of the $70,000 to each Approved Family Member where required by subparagraph 4(a)(iii) above or to each Approved Family Member who is a minor or a mentally incompetent adult where required by subparagraph 4(a)(iv) above:
    

   FMP1, FMP2, etc.	=	the amount an individual Approved Family Member would have been entitled to if claiming the preset Family Member payment pursuant to Section 6.02 of the applicable Plan
   PRS1, PRS2, etc.	=	an individual Approved Family Member's pro rata share of the remainder of the $70,000
   T	=	FMP1 + FMP2 + etc.
   PRS1	=	(FMP1/T x 70,000) – FMP1
   PRS2, etc.	=	(FMP2/T x 70,000) – FMP2

2. if one or more of the Approved Dependants is a minor and/or a mentally incompetent adult and the sum of all of the amounts which would have been payable had claims been made pursuant to Section 6.02 of the applicable Plan is less than $70,000, apply to the Court for directions through Fund Counsel with notice to the Approved HCV Personal Representative, Approved Family Members and/or Approved Dependants and the appropriate Public Guardian and Trustee and/or Children's Lawyer and thereafter allocate and pay the compensation as directed by the Court once its order is final; or
   
3. reject the election pursuant to Section 5.01(2) of the applicable Plan, if the sum of all of the amounts which would be payable pursuant to Section 6.02 of that Plan is equal to or greater than $70,000, and allocate and pay compensation pursuant to Section 5.01(1), 6.01 and/or 6.02 of that Plan, as applicable in accordance with the provisions of this protocol.

Compensation under Section 5.01(4) of the Hemophiliac HCV Plan [Primarily-Infected Hemophiliac (or person with Thalassemia Major) died prior to January 1, 1999]

5. If the Approved HCV Personal Representative and all of the Family Members and/or Dependants (or, in the case of a minor or a mentally incompetent adult, his or her Personal Representative) of the deceased Primarily-Infected Hemophiliac (or person with Thalassemia Major) also infected with HIV having claims under the Hemophiliac HCV Plan agree to claim the $72,000 fixed payment pursuant to Section 5.01(4) of that Plan in full satisfaction of all their Claims (including all potential Claims pursuant to Article 6), the Administrator shall:

1. provided that no Approved Dependant is a minor and/or a mentally incompetent adult, allocate and pay the compensation, subject to the Procedure-Payments to Minors and/or Mental Incompetents, as follows:

1. to each Approved Family Member (who may or may not also be an Approved Dependant), his or her pro rata share calculated in accordance with the equation provided in subparagraph 5(a)(iv) below, using as his or her FMP for the calculation the amount he or she would have been paid if he or she had a claim pursuant to Section 6.02 of that Plan;
   
2. to each Approved Dependant who would not have been entitled to a payment under Section 6.02, his or her pro rata share calculated in accordance with the equation provided in subparagraph 5(a)(iv) below, using as his or her FMP for the calculation a deemed amount equivalent to what an Approved Family Member under the age of 21 would be paid pursuant to Section 6.02 of that Plan; and
   
3. to the Approved HCV Personal Representative on behalf of the estate of the Primarily-Infected Hemophiliac (or person with Thalassemia Major) also infected with HIV who has died, a pro rata share calculated in accordance with the equation provided in subparagraph 5(a)(iv) below, using as its FMP for the calculation a deemed amount of $50,000;
   
4. the following equation shall be used to calculate each pro rata share of the $72,000 compensation:
    

   FMP1, FMP2, etc.	=	the amount directed in subparagraph 5(a)(i), (ii) or (iii) above to be used in the equation in respect of each Approved Family Member, Approved Dependant or the Approved HCV Personal Representative
   T	=	FMP1 + FMP2 + etc.
   PRS1, PRS2, etc.	=	the pro rata share of each Approved Family Member, Approved Dependant or the Approved HCV Personal Representative
   PRS1, PRS2, etc.	= =	(FMP1/T) x 72,000 (FMP2/T) x 72,000

    

2. if one or more of the Approved Dependants is a minor and/or a mentally incompetent adult, apply to the Court for directions through Fund Counsel with notice to the Approved HCV Personal Representative, Approved Family Members and/or Approved Dependants and the appropriate Public Guardian and Trustee and/or Children's Lawyer and thereafter allocate and pay the compensation as directed by the Court once its order is final.
      

DEATH ON OR AFTER JANUARY 1, 1999
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Compensation under Section 6.02 of the Transfused HCV Plan or the Hemophiliac HCV Plan (HCV Infected Person died on or after January 1, 1999)

6. Unless a $50,000 fixed payment has been or will be made under Section 4.08(2) of the Hemophiliac HCV Plan, the Administrator shall allocate and pay compensation to each Approved Family Member in accordance with Section 6.02 of the applicable Plan, subject to the Procedure-Payments to Minors and/or Mental Incompetents.

Compensation under Section 6.01(1) of the Transfused HCV Plan or the Hemophiliac HCV Plan (HCV Infected Person died on or after January 1, 1999)

7. Unless a $50,000 fixed payment has been or will be made under Section 4.08(2) of the Hemophiliac HCV Plan, the Administrator shall allocate and pay loss of support to each Approved Dependant in accordance with Section 6.01(1) of the applicable Plan in the same manner as provided in paragraph 3 above.
   

NOTES APPLICABLE TO SOME OF THE PROVISIONS OF THIS PROTOCOL
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8. If the Courts, in accordance with Section 7.03 of the Plans, amend or remove in whole or in part the $75,000 and/or the 70% restrictions in the calculation of loss of income, the portion of this protocol relating to compensation payments for loss of support under Section 6.01(1) of either Plan shall be reviewed by the Joint Committee in consultation with the Fund Counsel, the Public Guardians and Trustees and the Children's Lawyers and the Joint Committee shall, if necessary, request the Courts to consider any required changes to this protocol.
   
9. Compensation payments for loss of services in the home in accordance with Section 6.01(2) of the applicable Plan shall be allocated and paid in the same manner as provided for loss of support under this protocol, subject to the provision in Section 6.01(2) that such compensation shall only be allocated and paid to Approved Dependants living with the HCV Infected Person at the time of the HCV Infected Person's death.
   
10. All compensation payable under Sections 5.01(2), 6.01 and/or 6.02 of either Plan is subject to the restrictions in Section 5.01(3) or 6.02 of the applicable Plan where the deceased HCV Infected Person is also a HIV Secondarily-Infected Person.
    
11. The amounts referred to in this protocol are subject to the indexing provisions of Section 7.02 of the applicable Plan.
    
12. An amount not to exceed $5,000 to reimburse uninsured funeral expenses may be payable to the Approved HCV Personal Representative on behalf of the estate of the HCV Infected Person who has died, pursuant to Section 5.01(2) of the applicable Plan.