Plaintiffs and families: It’s all about you. You have suffered an injury that will change your life. You may be compensated for your injuries. You have one shot at getting this right and you are at the “goal line” when you are about to receive your recovery. Now is the time you need to consult with knowledgeable settlement planning attorneys.
You will hopefully only go through an experience like this once in your life. However, we have assisted families many times so that we can use our experience to provide you with the best possible outcome in your case and enhance the life of a person who may never be able to work again and who may need regular assistance with even simple daily tasks. We want you to be aware of all of your options before you decide how to settle your case. We are available for a free evaluation of your situation to determine your options
Assisting the Elderly Client
Many attorneys mistakenly believe that if a plaintiff receives a settlement over the age of 64 that there are no options to protect those funds.
This is in part because self-settled Special Needs Trusts cannot be funded by people who are 65 years or older. However, there are still many options available to the older client. We have represented numerous clients over 64 and provided unique and valuable planning techniques to preserve their settlements. In addition, an elderly plaintiff who may not be severely disabled must consider the future possibility of needing expensive nursing home care. The planning for this type of care is extremely time sensitive and should be investigated as soon as an older plaintiff knows that a financial recovery is on the horizon.
Why Do I need a Trust?
When a person settles a personal injury lawsuit, it’s usually the largest sum of money they will ever get at one time. Because the courts want to protect an injured person from squandering their funds or from the designs of manipulating third parties, some type of protective trust is usually involved.
Here are some important things to consider when going through this process:
- If the injured person is incapacitated and cannot make decisions, a court will almost always require a trust be established.
- If the injured person is a minor, a trust usually will be required. Just because you are a parent of an injured child, don’t assume you will be allowed to act as trustee, especially if a large sum of money is involved.
- A Trust can come in many forms, with many options. It’s important to become educated on the types of trusts that are available and how they work far in advance of mediation or settling a case, because frequently the terms of the settlement can lock in the trust term unknowingly to the injured person.
- There are many different types of trustees all over the country and you should interview several far in advance of receiving your money to find out the trustee’s views on managing your money.
- Here are some examples:
- Does the trustee specialize in working with individuals with long term disabilities?
- Will the trustee allow the purchase of a home? A car? Can the family use the home and car? Vacations?
- What is the history of the trust company? It’s financial strength?
- Will the trust company let you select your own financial advisor to invest your money?
- What are the trustee’s fees? The financial planner’s fees?
- Do they have a quick response time for requests or is there a certain threshold that requires a committee to approve an expenditure?
- Will the trustee pay for medical procedures outside the United States?
- Will the trustee pay for medical procedures that are not FDA approved?
- How easy or difficult is it for the trustee to be removed by the injured person or his surrogate? What does the family have to say about how the trust is administered?
- Does the trustee use a law firm and what are the fees charged by the law firm against the trust fund?
- What type of support staff or resources does the trustee employ to handle daily care and medical needs? Do they have a hotline to call for quick answers?
- Is the trustee dynamic in the planning alternatives for the injured person or do they stick to boilerplate trust documents that are inflexible and not customized for the injured person and his family’s personal situation?
- Hiring a trustee to oversee a large financial settlement is an important decision that should not be done at the last minute. Injured people and their families should be prepared to select a trustee and build an estate plan around the trust prior to settling the case or even attending mediation.
When assisting plaintiffs desiring to use a Special Needs Trust, we interview the client as well as any other relevant people (such as family, caregivers, professionals, etc.) and determine the goals and draft the Trust along with any supporting documentation. We also assist the client with understanding choices regarding what assets to place in the trust as well as how the trust will work on a daily basis.
We interface with all relevant government organizations to have the trust approved, and will attend court hearings on the client’s behalf to finalize everything in order to get the trust up and running. Our assistance does not stop there, as we are available for continued support as needed as things arise in the future.
If the injured person is not a minor, does this person have legal capacity to make decisions about purchasing a home? Should the person take title to the home in his or her own individual name? If a Special Needs Trust is funded immediately following settlement, has the opportunity to avoid the State lien against the home been lost forever? There are ways to take title to the home to avoid the State lien but these techniques must be implemented before the Special Needs Trust is funded after settlement.
Purchasing a home, especially one that may require significant and expensive modifications to accommodate a disabled client, is an extremely important decision that should be investigated far in advance of accepting a monetary settlement. Planning ahead allows the injured person and his or her family the ability to investigate the options and understand how to best design the ownership, use and ultimate disposition of the home in the future.