Settlement Resolution Planning

We know that you, as a personal injury trial lawyer, fight hard to reach an optimal recovery for your client. Our settlement resolution solutions are designed to protect your client and you from unintended consequences.

Elder Law of East Tennessee can enhance the results of your client’s recovery along with your client’s future quality of life after settlement is concluded. Our attorneys are highly knowledgeable in the areas of public benefits and Attorney Amelia Crotwell litigated personal injury cases for ten years prior to becoming certified as an elder law attorney by the National Elder Law Foundation. We know how difficult it is to get a fair result for your injured client. We can guide you to avoid mistakes and liability to be sure you cover all the bases when reaching a settlement or verdict. Particularly, in cases involving plaintiffs with devastating injuries, permanent disabilities, or receiving means-tested government benefits, distributing funds directly to the plaintiff without proper planning can be catastrophic, leading to potential liability for you as well as upheaval and loss of benefits or suits for overpayments for your client. Consider the following:

  1. Does your client or a family member in his household have a disability? What steps have you taken to address his future needs?
  2. Does your client or a family member in her household receive any government-based benefits (i.e., Medicaid, SSI, Section 8, etc.?) What steps have you taken to avoid loss of benefits?
  3. Is it likely that your client may need long-term care services (i.e., home care, nursing facility care, etc.) in the future? If so, what steps have you taken to protect the proceeds of litigation?
  4. Is the proposed settlement amount sufficient to provide for the long term needs of your client? How do you fairly analyze sufficiency? Are government-based programs plus the recovery sufficient to satisfy your client’s needs?
  5. Does your client need a special needs trust? What type of trust is appropriate given the age and circumstances of your client? Are you qualified to draft such a trust?
  6. Who should be the trustee of a special needs trust? Is a family member really qualified to handle something so complex? We can help by serving as trustee or a co-trustee with a trusted family member.
  7. Can the trust purchase a home, make home improvements, purchase a vehicle, or pay a parent for caregiving? What are the parameters for properly using a sole benefit trust?
  8. Have you considered Medicare’s interests and is a Medicare Set Aside needed? If so, should it be wrapped within the special needs trust?
  9. Does your client have even the most basic estate plan? What type of planning is most appropriate for the long-term for this client? Will substitute decision making become an issue?
  10. Does your client have family or “friends” who may exploit or exert undue influence? And, if so, would a protective trust be appropriate for safeguarding this client’s hard-won recovery?
  11. Have you considered the tax consequences for your client (especially if considering using a structured settlement)?
  12. Are you concerned with “constructive receipt” of the settlement funds causing a problem for your client’s continued government benefits? Should you be?
  13. Has your client complied with the requirements for reporting the recovery with various benefits programs? What is the consequence of non-compliance?
  14. Where will your client obtain health insurance in the future? Is there a plan in place for her access to health care?
  15. Are there ways to reduce income taxes for the attorney’s fees? What options should you consider?

We can work with you early on in the settlement resolution process to assess the plaintiff’s needs and offer sound solutions before funds are received. This helps expedite the settlement process because the client has a plan in place when settlement arrives. We offer a complimentary review of the matter, which allows us to quickly identify issues for you and facilitate our examination of the client’s situation, without risk to the client or counsel.

Structure Settlement Facilitation

We can assist counsel to plan the transition of accepting a structured settlement smoothly. We can assist with the allocation of funds between structures and outright distributions, as well as distributions to special needs trusts or various other types of trusts necessary to protect the client. Federal law and Tennessee have very strict rules regarding immediate “Medicaid compliant” annuities. If you are not aware of the rules introduced in the Deficit Reduction Act of 2005, doing a traditional structure could lead to a loss of Medicaid benefits for the client. Let us help you help your client understand the parameters of what type of structure is appropriate and avoid costly mistakes.

Trustee and Fiduciary Needs

A trustee of a special needs trust occupies a vitally important role in the management of the assets of a person with a disability. Compliance with needs-based programs is an ongoing concern requiring coordination and careful attention to detail and documentation. Management or mismanagement of such a trust may affect the trust beneficiary throughout his or her lifetime. We serve as trustee for special needs or disabled beneficiaries. We also represent and advise trustees on how to interpret the law and advocate for the rights of beneficiaries with disabilities to maintain important government benefits. Elder Law of East Tennessee is very skilled at drafting special needs trusts and obtaining approval of the trusts with the Medicaid agency, the Social Security Administration, and other government agencies. Handling a trust review and in some circumstances a trust reformation or modification, may involve interacting with the trust beneficiary and family, preparing court pleadings, and making court appearances to maintain the integrity of the trust plan. We can also assist with establishing or serving as a court appointed guardian or conservator when necessary.

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