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Special Needs Settlement Planning

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Special Needs Settlement Planning (SNSP) is a comprehensive array of legal services intended to assist disabled individuals, as well as their personal injury attorneys, in the process of settling claims.

SNSP combines traditional tools, such as Special Needs Trusts, with a thorough evaluation of the increasingly complex issues that arise in cases involving disabled individuals. SNSP attorneys focus on preserving eligibility for public assistance, but they also evaluate and address the many related issues that often present themselves in such cases. These issues include: Medicare and Medicaid lien resolution, Medicare Set Aside (MSA) arrangements, court approval of proposed settlements, and structured settlement planning, among others.

The services of SNSP experts provide disabled plaintiffs with customized settlement plans that not only preserve their public assistance benefits, but also address their life-care needs and estate planning concerns. At the same time, SNSP services allow personal injury lawyers to focus on the liability aspects of their case and to reduce their malpractice risk.

SNSP services include:

  • Identification of Public Assistance Programs.  SNSP professionals can assist personal injury attorneys in identifying which public assistance programs a plaintiff is receiving and what types of issues those programs present. Additionally, SNSP attorneys can identify other available public assistance programs for which a plaintiff might qualify.
  • Lien Resolution.  In many cases involving disabled individuals, settlement proceeds are subject to Medicaid liens as well as to reimbursement for conditional payments made by Medicare. SNSP lawyers can assist personal injury lawyers in identifying and resolving such liens in the process of settling a case. Because of their expertise in public benefits law, SNSP professionals are well-equipped for this task.
  • Structured Settlement Planning.  Although most personal injury attorneys have experience working with structured settlement brokers and establishing structures, SNSP attorneys can add valuable perspective before a structure is agreed upon. By involving a SNSP professional early on in a given case, personal injury lawyers can help ensure an appropriate balance between structured and lump sum settlement proceeds. Additionally, SNSP professionals can assist personal injury lawyers in coordinating a proposed structure with a Special Needs Trust, and can ensure that the payee and beneficiary designations for a given structure comply with state and federal public benefits laws. Lastly, in larger cases, SNSP professionals can identify and resolve estate taxation issues that may arise in connection with structured settlements.
  • Settlement Approval.  Frequently, proposed settlements for disabled individuals require court approval. SNSP professionals offer expertise in efficient approval of proposed settlements, including approval of attorney´s fees and costs. Often, requests for court approval of settlements can be combined with requests for creation of Special Needs Trusts, Medicare Set Aside arrangements, and/or creation of Conservatorships.
  • Special Needs Trusts.  Disabled individuals who receive means-tested public assistance generally need Special Needs Trusts in order to retain that assistance after receiving a settlement. SNSP attorneys are skilled at drafting Special Needs Trusts, and can tailor them to the specific needs of particular beneficiaries. If appropriate, SNSP lawyers can incorporate a Medicare Set Aside arrangement into a Special Needs Trust, address a beneficiary´s estate planning wishes, and achieve other goals. For more information, see Trusts Created with Personal Injury Proceeds.
  • Identification of Appropriate Fiduciaries.  SNSP professionals´ knowledge of Special Needs Trusts, Medicare Set Aside arrangements, and related issues can be valuable in identifying appropriate fiduciaries to manage settlement funds for disabled individuals. Each case presents a unique set of issues, and often identifying a trustee or conservator with the right mix of knowledge and experience is critical.
  • Conservatorships.  In many cases involving Special Needs Trusts, a conservatorship is required by law to provide court oversight of a disabled person´s settlement funds. SNSP professionals are experienced in the creation of conservatorships, and can often combine the conservatorship process with a request for settlement approval, and the creation of a Special Needs Trust and/or Medicare Set Aside arrangement. For more information, see Conservatorships.
  • Medicare Set Aside Arrangements.  The Medicare Secondary Payer (MSP) statute requires that Medicare´s interest be considered whenever a Medicare beneficiary (or an individual expected to become a Medicare beneficiary) receives a settlement involving payment for future medical expenses. Although this requirement is not new, recent developments in the law have raised the importance of addressing the possible need for a Medicare Set Aside arrangement during the process of settlement. SNSP professionals are at the forefront of this emerging area, and can advise disabled individuals and their personal injury attorneys of their obligations in this regard, as well as the options for meeting those obligations. For more information, see Medicare Set-Asides (MSAs).
  • Qualified Settlement Funds.  Section 468B of the Internal Revenue Code allows settlement funds to be placed into a Qualified Settlement Fund (QSF) while the details of a settlement (i.e. structure details, Special Needs Trusts, Medicare Set Aside arrangements, etc.) are being worked out. While the funds are held in a QSF, liens can be resolved, trusts can be drafted, and a financial plan for the plaintiff can be developed. Funds held in a QSF are not considered to be available to a plaintiff, so constructive receipt issues are avoided. Defendants can make payment into a QSF and complete their involvement in the case. The plaintiff can then deliberate carefully on the details of the settlement. SNSP professionals are familiar with the state and federal laws governing QSFs, and can navigate the process of creating them in appropriate cases.
  • Trust Administration Support.  SNSP professionals provide ongoing legal advice and counsel to trustees of Special Needs Trusts, conservators and other fiduciaries. Because these fiduciaries are often required to follow state trust law and both state and federal public benefits laws, ongoing legal representation is useful. SNSP attorneys assist fiduciaries in determining whether certain expenditures are appropriate, seek court authority for certain large purchases such as a home or specially-equipped vehicle, and prepare the required accountings and other documents.

Fitzwater Meyer, LLP is experienced in special needs settlement planning, and can assist you with questions as well as conservatorships, court approval of settlements, lien resolution, special needs trusts, MSAs and other settlement planning matters.

 

DISCLAIMER:The information contained in this website is based on Oregon law and is subject to change. It should be used for general purposes only and should not be construed as specific legal advice by Fitzwater Meyer Hollis & Marmion, LLP or its attorneys. Neither this website nor use of its information creates an attorney-client relationship. If you have specific legal questions, consult with your own attorney or call us for an appointment.