What is a special needs planning attorney and why do litigation attorneys need one? A special needs planning attorney is, ultimately, a highly specialized probate attorney. These planners usually have an extensive background and experience in the rules of probate court administration for estates and trusts, tax, and ever-changing state and federal public benefit rules. There is nothing worse for you, the litigation attorney, than experiencing the anxiety and irritation of a client who finds out at the end of the case that her public benefits will be affected because of a settlement you have worked so hard to obtain, or that she can’t control her own money and keep her benefits.
Calling in a special needs planning attorney early in the litigation process can help do several things:
- Identify untapped resources. A special needs planner will drill down and get detailed information about the client’s stream of benefits. They may be able to identify additional untapped resources that are available to meet the client’s needs. This helps clients visualize their lives after the resolution of the case and how your services, and the proceeds from the case, can help make their lives better.
- Explain the impact of the settlement. A special needs planner will outline how the proceeds from the resolution of the case will impact the client’s public benefits. The planner can also provide a broad overview of available options. The most important message to convey to a client is the realization that in order to keep certain public benefits, he may have to give up control of the money. This will prevent having a disappointed and angry client at the end of the litigation.
- Support the client. At times, the client may feel pressure from friends or family to pay back people who have supported him during difficult times, help out those who may be struggling, or deal with people around him who may feel entitled to a share of the proceeds. The special needs planning attorney can help support the client and protect him from these demands. The special needs planning attorney can also outline the requirements to legitimately pay back those who have loaned the client money during times of need.
- Play a key role in mediation and settlement planning. A special needs planner can be an integral part of supporting your negotiation process and answer any questions or issues that are thrown out by the defense, such as the availability of private health insurance, Medicaid services, Medicare compliance issues and the need for a Medicare set-aside account, and the coordination of trusts and structured settlement annuities.
- Lead the settlement planning team. A good special needs settlement planner can often lead the settlement planning team that brings together professionals to help get agreement on the details of the final resolution of the matter after a settlement or verdict has been reached. The planner may be able to offer suggestions about how to eliminate some of the most common headaches that prevent you from moving onto the next matter, such as lien resolution and Medicare set-aside reporting compliance. This individual may also be able to lead the team of financial advisors, tax advisors, benefits coordinators, structure brokers, and qualified settlement fund attorneys and advisors, and of course, create a special needs trust or other trust plan that best suits the client’s needs.
- Design a settlement plan that works for the client. A special needs planner can help create and implement a suitable and sustainable plan for the client. The planner will evaluate the benefits currently received, identify unmet needs, and plan for future needs specific to the challenges the client faces due to her condition, which helps to support the individual’s independence and quality of life. Experienced planners can also create efficiencies due to their expertise that are often overlooked and that may prevent unnecessary court involvement, or suggest ways to get attorney fees paid more quickly or even defer income to the firm.
- Prevent malpractice. Some of the most common traps even the most experienced and successful litigators fall into involve the impact of litigation proceeds on public benefits, distributing the proceeds to an improper party, dealing with Medicare reporting requirements and responding to defense counsel demands. There are a variety of cases arising from these issues that impose liability on the litigation firm. Retaining a special needs planner helps to insulate the firm from liability and ensure the client is protected from unintended consequences after receiving the litigation proceeds.
Bringing in a special needs planning attorney early in the process will help the client develop realistic expectations about the degree of control they will have over the litigation proceeds. The planner can evaluate the available benefits, help maintain or obtain benefit eligibility, protect the client from predators, and design a plan that promotes client independence and increases her quality of life. Thanks to the unique knowledge and experience of a special needs planning attorney, the litigator is less likely to fall into avoidable traps, is relieved of multiple headaches such as lien resolution and reporting requirements, and can get paid more quickly, all of which will allow the litigator to give his or her full attention to the next matter.