THE TEAM APPROACH TO RESOLVING POST-SETTLEMENT ISSUES IN PERSONAL INJURY CASES
by: Begley Law Group
by Thomas D. Begley, Jr., Esquire, CELA
Once the Personal Injury Attorney has assisted a client in achieving a personal injury recovery, there is often other work that needs to be done. Victims of personal injuries often require the services of a team of professionals to piece their lives back together. The Personal Injury Attorney may have already assembled all or part of such a team, or may work with a Trust Attorney who has done so.
The Trust Attorney will meet with the personal injury victim and his or her family, when appropriate.
- Options for Settlement. The Trust Attorney will explain the various options for handling the settlement.
- Types of Trusts. The Trust Attorney will assist the client in determining the appropriate type of trust. The Trust Attorney will explain the various types of trusts, including Special Needs Trusts and Settlement Protection Trusts, the advantages and disadvantages of each, and how each trust will work. This includes assistance in identifying the client’s immediate cash needs as well as a monthly budget. The Trust Attorney can draft the appropriate trust document.
- Tax Advice. Larger settlements frequently have tax issues that need to be addressed, and the Trust Attorney can assist in this regard.
- Estate Planning. The Trust Attorney can explain the reasons for Estate Planning for family members as well as the injured person, and can prepare the necessary documents including Wills, Special Needs Trusts, Living Wills, and Powers of Attorney.
- Public Benefits. The Trust Attorney is able to assist the client in identifying public benefits to which he or she may be entitled and developing strategies to obtain and retain those benefits.
- In wrongful death cases, probate is often required.
- In cases involving an incapacitated plaintiff, The Trust Attorney can assist in obtaining guardianship where appropriate.
In large recoveries, the client will always need a Financial Advisor. The Financial Advisor provides assistance in the following areas:
- The Financial Advisor assists the client in developing a wealth management strategy that provides him or her with financial security for the rest of his or her life to fulfill his or her hopes and dreams without compromise.
- Financial Services. Services include financial planning, planning for individuals with special needs, retirement planning, professional portfolio management, and wealth management.
- Extraordinary Services. The Financial Advisor offering extraordinary services might even assist the client in purchasing an appropriate vehicle at a very favorable price.
Structured Settlement Broker
It is often wise to structure a portion of the client’s settlement to ensure that there will always be a guaranteed stream of income to meet the client’s basic needs.
- Gathering the Facts. The Structured Settlement Broker begins the process with identifying the client’s current finances, future objectives, current risk tolerance, health needs, and other needs that must be planned for. The Structure can be designed to produce a monthly income or can include lump sum payments at predetermined periods, such as providing funds for college education.
- A strategy is then developed to meet these objectives.
- The income stream is income tax-free to the client.
- Attorney’s Fees. In cases involving large settlements, it often makes sense for the Personal Injury Attorney to structure all or part of the attorney’s fee. By utilizing this strategy, the income can be deferred until after the Personal Injury Attorney retires and can supplement his or her retirement income.
Frequently, personal injury victims require on-going care.
- Care Plan. A Nurse Consultant can develop a care plan and coordinate and supervise the care on an on-going basis.
- Services might include critical care and rehabilitation, case management, working with ADA-certified contractors and architects for home modifications and new construction.
There are often liens against settlements by Medicaid, Medicare, hospitals, ERISA, and others. These liens can often be negotiated and often can be reduced by more than procurement costs. Experts are available to assist in these negotiations.
A Professional Trustee is always a better option than a family member, who has a target on his or her back should he or she fail to administer the Trust properly. The Professional Trustee:
- Knows the law and keeps up with changes in the law,
- Avoids family friction;
- Avoids conflicts of interest;
- Performs its duties in a timely manner;
- Is familiar with public benefits laws and knows how to navigate the disability system
Medicare Set-Aside Professional
A qualified Medicare Set-Aside Professional can assist with the following:
- Calculating the amount necessary to fund the Medicare Set-Aside Arrangement (MSA).
- Conditional Payment Search. The Medicare Set-Aside Professional can assist in a formal investigationof conditional payments made by Medicare that may result in a Medicare lien. The professional has access to the Medicare portal.
- The professional can assist in lien disputes with CMS. The professional has access to exclusive software allowing cross-referencing and analyzation.
- Conditional Payment Disputes. The professional can assist in conditional payment disputes and identification of any relationship to the covered illness or injury. Frequently, payments made by Medicare not related to the injury.
Medicare Set-Aside Custodian
While there is no requirement that a Medicare Set-Aside Custodian be utilized, it is good practice. A self-administered account is often used for inappropriate purposes. A good custodian will deposit the fund into an interest-bearing account, use the fund only for treatment related to the injury, use the fund for only Medicare-covered expenses, pay according to the appropriate fee schedule, and prepare and submit annual accounting reports to CMS. Finally, the custodian will maintain line item detail for the duration of eligibility.