Special Needs Settlement Planning
Public Benefit Advisement: We assist trial lawyers in identifying public assistance programs and eligibility requirements for those programs which may be impacted by settlement. We also identify techniques to protect eligibility for programs the injury victim needs post settlement. Our experience also allows us to assist in identifying additional programs that may be beneficial to the injury victim after settlement.
Special Needs Trusts/Pooled Trusts: A special needs trust is a trust created pursuant to federal law whose assets don't count for purposes of needs based public benefit programs such as SSI/Medicaid. We specialize in drafting these trusts to meet the specific needs of the injury victim and his or her settlement. We also assist with establishment of a pooled special needs trust sub-account.
Medicare Set Aside Advisement: Compliance with the Medicare Secondary Payer Act at settlement can be a daunting task. The implementation of a Medicare Set Aside may be necessary in certain cases to comply with the MSP. We provide guidance and recommendations to help the trial lawyer navigate this complex area of the law, to include correcting misinformation from the defendants in regards to your client's responsibilities under the Act. We also prepare formal submission packages to CMS for MSA approval. In some cases clients are dual eligible (Medicare & Medicaid) in which case a hybrid SNT/MSA must be created. We have the requisite expertise to draft these hybrid trusts.
Settlement Planning Advisement: Navigating the complex issues at settlement regarding settlement options and funding trusts can be extremely complicated in today's settlement landscape. We provide advice regarding allocation issues between different settlement options along with identification of issues regarding state/federal law requirements for payee as well as beneficiary designations.
Settlement Trusts: Settlement trusts are an excellent tool for managing a client's settlement when public benefits are not an issue. These trusts are useful in many cases to avoid rapid dissipation of the settlement or for wealth management/estate tax reasons. We draft settlement trusts specifically tailored to an injury victim's needs and goals.
Selection/Identification of Trustee: Oftentimes a professional trustee is utilized for special needs trusts, Medicare Set Asides and settlement related trusts. Identification of an appropriate fiduciary to manage a trust beneficiary's needs is critical. We make sure the trustee, if it is a professional trustee, is suitable to the type of trust being created.
Settlement Approval Assistance/Consultation: The implementation of certain trusts necessitates court approval by the court with appropriate jurisdiction. We advise regarding the need for court approval of certain trusts and work in conjunction with a guardianship/probate lawyer to get proper approval of the settlement.
Qualified Settlement Funds ("QSF"): Our firm establishes qualified settlement funds and provides trustee services for the fund. A qualified settlement fund is a valuable settlement planning tool. It allows a trial lawyer to settle a case involving complex settlement planning issues as if it were a "cash" settlement. The funds are sent from the defendant to the trust which acts as a temporary holding tank for the funds without violating constrictive receipt and available resource rules for needs based public benefits. QSFs are established pursuant to 468B of the Internal Revenue Code.