The Solution: We interviewed the plaintiff, his attorney and the relevant family members to discover their needs, goals, concerns and the benefits available. We did a comprehensive analysis to “consider Medicare’s interests” and determined that an MSA was not required. We considered a Special Needs Trust, but since the plaintiff was over age 64, this was not an option. While the client was currently only utilizing Medicare benefits, given his age and disability, we considered that his future transition to the possibility of nursing home care was accelerated due to his injury and ambulatory problems. Therefore, we implemented a plan to protect the settlement proceeds through a Medicaid qualified trust. This was a second marriage for the plaintiff’s spouse, who had children from a prior marriage. We had to determine the ultimate distribution plan of the plaintiff and his spouse and consider the family dynamics so that the clients could accomplish their goals with their new found wealth.
We considered a structured settlement in this case, but because a structure would have locked the plaintiff into a multi-year payment scheme, all of the structure payments would have been available resources for nursing home spend down if he went into a nursing home in the future. Therefore, we recommended a lump sum payout that was then placed into a protected trust where the funds could grow and provide lifetime income to the plaintiff while preserving the principal for future generations.
Through our due diligence with the plaintiff and his family, we discovered that an heir of the estate plan was disabled and currently receiving “means tested” benefits. If that heir were to receive an inheritance outright, she would be terminated immediately from important government benefits essential to daily life and would have to endure the re-application process all over again after spending down the assets. So, we created a Supplemental Needs Trust that could hold her inheritance for her, provide for her daily needs financially, yet the value of the trust assets would not be counted towards any of the government programs she was receiving and would not disrupt her important assistance that she needs.
In this case, we met with the plaintiff several months before the actual settlement proceeds arrived. We traveled to their house to accommodate their needs and listened to what was important to them. Finally, we developed a long term plan that will benefit them for years to come.
Minor Death and Disabled Plaintiff from MVA: In a high profile and publicized case, a minor child and unborn child were lost in a motor vehicle accident and their mother was seriously injured as a result of being hit by a drunk driver. The settlement in excess of $15 million could never bring back the lives of the client’s daughter and unborn child. However, the acceptance of this significant settlement carried with it numerous planning issues, many of which needed to be decided before the terms of settlement were finalized. We were requested to analyze the case by plaintiff’s legal counsel and identified several critical issues:
1. Lump-sum vs. structured payments or a combination of the two?
2. Was a Medicare Set Aside warranted? If so, under what terms?
3. Were any family members receiving government benefits or could reasonably be expected to in the next few years?
4. What were the family’s goals moving forward?
5. What estate and income tax planning maneuvers are available now and in the future?
6. Should a Special Needs Trust be utilized?
Minor Disabled from Motorcycle Accident: A minor was rendered a paraplegic as a result of a motorcycle accident. He waited several years to receive a seven figure settlement, at which time he was now over 18 years old. He was receiving significant assistance for pharmacy bills and other ongoing medical needs through the Medical Assistance program as well as SSI benefits. He also had a minor child at the time the settlement would be received. Before contacting our office, he was initially offered a 25 year structured settlement by the defense which would have made him ineligible for both Medicaid and SSI, which would have been devastating to his living situation. Furthermore, the structure payments would be depleted far before his life expectancy, leaving him without income or assets at an older age when he would need financial and healthcare assistance the most. We worked with the client and his family to investigate and resolve the following issues:
1. How should he receive the settlement while maintaining both Medicaid and SSI benefits?
2. What were Medicare’s interests in the settlement and would a Medicare Set Aside be necessary?
3. How could he maintain coverage under a parent’s health insurance plan since he was disabled as a minor?
4. The client wanted to purchase his own home. How would this be facilitated as well as maintained over the long term; and what liens should be considered in advance that might be relevant when the client dies?
5. How could the client take care of his minor child?
6. How would the client purchase and own a vehicle with hand controls?
7. What planning did the client’s parents need to take in their own estate plans to accommodate their child’s new circumstances?
8. Would a Special Needs Trust for the client be appropriate?
9. What other legal documents does the client need to have a comprehensive estate plan?
*Each case is unique and past results are not indicative of future results.
Elderly Plaintiff Planning involving MVA: We were referred this case by the personal injury attorney handling the matter involving a motor vehicle accident. The plaintiff was a married male in his 70’s who was in a serious motor vehicle accident in which the other driver was at fault. He suffered multiple fractures and will have ambulatory problems for the rest of his life. There were multiple issues in this case which had to be considered prior to accepting the settlement proceeds:
1. What are the plaintiff’s future medical issues and would a Medicare Set Aside be necessary?
2. Could a Special Needs Trust be used?
3. What government benefits were currently needed? What benefits in the future?
4. How to deal with children from prior marriage in estate plan?
5. Could a structured settlement be helpful in this case?
6. One of the family members was already disabled. How do we plan for this issue?
7. What happens of the plaintiff, who is already in his 70’s, goes into a nursing home in the future?
8. How could the plaintiff move out of their current apartment to better accommodations and protect their new home through proper estate planning?
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