by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA

Personal Injury Attorneys work very hard and generally achieve excellent results for their clients.  However, post-settlement issues frequently arise that haunt the Personal Injury Attorney later, even occasionally resulting in malpractice cases.

  1. Medicaid Payback. “You told my father that he had to do a Medicaid Payback Special Needs Trust. He recently died and all of the money remaining in the trust went to pay back Medicaid.  I recently learned that there are many other planning options that would have maintained benefits without paying back such significant sums of money to Medicaid.  Couldn’t you have referred us to someone who could have helped us with these other options?”
  2. Improper use of a Structured Settlement.“My child was born with Cerebral Palsy.  We received a significant settlement on her behalf.  At the time the settlement was received, she was medically fragile.  The Structured Settlement called for a commutation rider upon her death.  She died six month after the Structured Settlement was issued.  The insurance company kept 28% of the cost of the Structure, because of the commutation rider.  Could you have referred me to someone who could have assisted in this analysis?”
  3. Medi-Gap Insurance.“Why didn’t you fully explain Medi-gap insurance coverage to me?  When I enrolled in Medicaid after applying for Social Security Disability, I had only one opportunity to select a Medi-gap insurance plan.  I am now 45 years old and can’t get my coverage back until I turn 65, because of my pre-existing condition.  Couldn’t you have referred me to someone who understood these Medi-gap plans?”
  4. Structured Settlement Monies to Nursing Home.“You obtained a terrific settlement for my father, but unfortunately shortly thereafter he had to go to a nursing home.  The Structured Settlement pays a monthly sum for my father’s lifetime with a guaranteed term certain if he died prematurely.  The problem is now that he is in a nursing home, all of the money he receives on a monthly basis will have to be turned over to the nursing home.  Why did you let this happen?  A lump sum settlement could have been protected from a nursing home.  Couldn’t you have referred me to someone who could have helped guide us in this regard?”
  5. Trustee Issues.“I hate my Trustee.  My Trustee never returns my calls, doesn’t explain anything, and told me that I cannot replace them.  It looks like I will have to go to court and spend a considerable amount of time and money to remove the trustee and replace them with a satisfactory trustee.  Why didn’t you tell me that I could have appointed a Trust Protector when the trust was established and given that person the right to remove and replace the Trustee without court intervention?  Couldn’t you have referred me to a lawyer to draft the trust who has more experience in Special Needs Trusts?”
  6. Emotional Sale of Structure Payments.“You did a great job settling my son’s case.  You funded the settlement with a Structured Settlement that will pay him a monthly income for the rest of his life.  The only problem is he met a girl who heard about all of his money, he sold the rest of his lifetime Structured Settlement payments to J.G. Wentworth.  He squandered the money they gave him in three months, and his girlfriend left him.  Why didn’t you tell him he could have had the Structured Settlement payments directed to a trust, which would have made it more difficult for him to make an ill-advised emotional sale?  Couldn’t you have referred us to someone with expertise in these matters?”

These types of questions deserve specific answers and each client’s case is unique.  Personal Injury Attorneys have extraordinary expertise in litigating and settling personal injury claims; however, most good Personal Injury Firms focus on that aspect of the client’s case and work with attorneys experienced in Special Needs Trust and Long-Term Care Planning to get a lot of their aspects of the matter.  A good Personal Injury Team would include:

  • A good Trusts and Estates Attorney
  • Financial Advisor
  • Structured Settlement Broker
  • Nurse Consultant
  • Trustee
  • Medicare Set-Aside Calculations Specialist
  • Medicare Set-Aside Custodian
  • Lien Resolution Expert
  • Medi-Gap Insurance Expert

Begley Law Group has assembled such a team and frequently works with Personal Injury Attorneys in all of these areas.