The role of the SNT attorney must be carefully defined with the PI attorney, the plaintiff and the plaintiff s family (if relevant)

Transcription

1 The Process of Collaboration of a Personal Injury Attorney and a Special Needs Trust (SNT) Attorney in Finalizing a Personal Injury Settlement By Dennis McAndrews, Esq. McAndrews Law Offices, P.C. I. Step 1: The Personal Injury (PI) Attorney Contacts the Special Needs Trust Attorney PI attorneys have widely varying levels of knowledge and experience regarding distribution issues for persons with disabilities The education and collaboration process must be concise, complete and specific The role of the SNT attorney must be carefully defined with the PI attorney, the plaintiff and the plaintiff s family (if relevant) 1

2 II. Step 2: Identify the Issues to Address in Resolving the PI Case and Making Distribution A. Identify all public benefits B. Satisfy public and private liens C. Identify future medical and financial needs of the plaintiff and his/her family D. Identify potential future sources of medical and financial benefits for the plaintiff, such as Social Security benefits, Medical Assistance, Medicare, private insurance under the Affordable Care Act, private disability coverage, etc. E. Identify existing and potential future supports for the plaintiff from family, public agencies, and private providers. 2

3 F. Determine the necessity of court approval for the settlement and/the Special Needs Trust Minor Incapacitated person Wrongful death cases Selecting a venue for approval where a case has not been placed into suit III. Step 3: Provide Options to the PI Attorney and the Disabled Plaintiff A. Self Funded Special Needs Trust B. Rapid spenddown C. Pooled Trust D. Outright distribution to a competent adult disabled plaintiff whose medical needs will be met by private insurance and/or Medicare and whose financial circumstance does not require monthly Supplemental Security Income benefits 3

4 E. Consideration of the possible need for a Medicare Set Aside, or at least to obtain adequate documentation regarding the lack of need for a Medicare Set Aside. IV. Step 4: Discuss How the Recovery Will Be Spent A. Payments for home, car, caregiver expenses B. Determine contingent beneficiaries of any Trust Competent plaintiff decides for himself/herself Minors and incapacitated persons must go to heirs C. Adequately address any issues related to a structured settlement with respect to the release, annuity contract, and beneficiary of the trust and the annuity s guaranteed payments upon the death of the plaintiff. 4

5 D. Is pre approval by the Department of Public Welfare and Social Security Administration necessary with respect to a Special Needs Trust? E. Corporate Fiduciary v. Private Trustee Expertise Cost Bonding issues V. Step 5: Select the Trustee for the Particular Situation A. Amount of Trust Corpus B. Family expectations C. Trustee s philosophy of distribution 5

6 D. Trustee s experience with Special Needs Trust E. Trustee s level of tolerance for difficult beneficiary and family VI. Step 6: Bringing the Matter to Completion A. Draft the Trust and prepare instructions to the Trustee, instructions to the PI attorney, and copy the plaintiff and the family (where appropriate) B. Clearly define the process by which the Trust will be funded C. Submit the Trust in a timely manner to the Department of Public Welfare and the Social Security Administration as necessary. 6

7 D. Assist the Trustee as needed in petitioning the court for distributions where necessary and/or providing ongoing advice concerning management of the Trust Questions? McAndrews Law Offices Locations Berwyn, PA Main Office: 30 Cassatt Avenue Berwyn, PA P: F: Wyomissing, PA Washington, DC Scranton, PA Wilmington, DE Philadelphia, PA Harrisburg, PA