The Role of an Elder Law Attorney in Personal Injury Actions
By Shannon Laymon-Pecoraro
Guardianships: When an individual lacks the requisite capacity to make the complex decisions associated required in bringing litigation, we are often called upon to bring a guardianship. In most cases, such causes of action are necessary to ensure that there is a proper fiduciary is empowered to bring the cause of action because the individual does not have an effective estate plan. In other cases; however, the personal injury may want the judicial determination of incapacity to streamline the decision making process.
Trusts: We most often called upon to draft settlement trusts to protect the hard-earned settlements or awards received by a client. In some cases, we draft these trusts prior to a trial in preparation for the final disposition, and in other cases, we are called upon on the back-end to resolve lingering issues. With few exceptions, trusts should be the preferred vehicles for settlement funds for children or individuals with disabilities because of greater flexibility and protections for the individual beneficiaries. Important protections offered with a settlement trust include:
- Protection of means-tested public benefits such as Supplemental Security Income (SSI), Medicaid, Section 8, and Food Stamps
- Resolving Medicare issues such as liens and set-asides
- Professional management of assets and spendthrift protections
Medicare Issues: The Medicare manual is complex, and the intricacies involved with Medicare’s status, as a “secondary payer” can be difficult to navigate. If you take into account the steep penalties associated for failing to address Medicare’s right to recover conditional payments or a future interest, having a second set of eyes becomes even more important. We are often asked to opine as to whether Medicare has a valid lien against settlement proceeds or if a set-aside is required.
Medicaid Issues: We are sometimes called upon to prevent the impoverishment of a family due to skilled-nursing required by an individual that has fallen victim to a catastrophic injury. We are most often called, however, to protect benefits that are already in place. While a minor may have Medicaid as a basic health insurance policy that can easily be substituted by purchasing private insurance, Medicaid benefits for the elderly or disabled will likely need much more protection due to more intensive care needs. This is especially true when an individual is receiving one of Virginia coveted ID/DD waivers, for which the waiting list is years long.
Bringing an elder law attorney in early becomes a critical component of settlement or trial preparation and often prevents delays associated with back-end tackling of issues. By being involved, an elder law attorney can assist with lining up allocations for Medicare and Medicaid, preparing Medicare Set-Asides, and drafting settlement trusts, settlement agreements, releases and orders to protect benefits and limit liabilities.
Hook Law Center, P.C. has been actively assisting clients and personal injury attorneys in resolving various elder law issues associated with settlements and awards. Our goal is to be an integral member of a settlement team and maximize the funds received, while protecting the clients and attorneys involved.
Ask Kit Kat – Moose on Isle Royale
Hook Law Center: Kit Kat, what can you tell us about moose on Isle Royale, Michigan?
Kit Kat: Well, this is an interesting story. Isle Royale is a national park belonging to Michigan which is located in Lake Superior, close to the Canadian border. It is a large island, 45 miles in length. Hundreds of smaller islands surrounding it are included in the national park. Right now, there is an imbalance in the moose-wolf population. Moose are increasing, while the wolf population is in significant decline. Inbreeding of the wolves have contributed to their decline, with only 2 left—a male and female who are too old to reproduce. Moose, on the other hand, who feed on Balsam fir trees, are thriving. This may sound fine, but it’s really not. If the moose population gets too large (it’s estimated to be around 1,600 currently), they will continue to denude the island of its fir trees. Already, many once forested areas have been turned into grassy plains. A good balance between wolves and moose is what scientists call a predator-prey balance. In the past, when the moose population got too large as it did in the 1990s and reached a number close to 2,500, many moose died of starvation during a severe winter in 1996. There are no easy solutions.
The National Park Service is looking into 4 alternatives to address the problem, one of which is to let the wolves die out. Their preference, however, is to relocate 20-30 wolves to the park over a 3-5 year period. They will make a decision this fall (2017). Mother Nature sometimes gets out of balance. It will be interesting to see how the park service decides to intervene, if at all.
(Associated Press, “As wolves die out, moose numbers boom on Michigan’s Isle Royale,” The Washington Post (Kids Post), April 19, 2017)
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