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Transcript of The Academy of Special Needs Planners Presents: Creating the Team & Managing Relationships Presented...
The Academy of Special Needs Planners Presents: Creating the Team & Managing Relationships
Presented by:
Jason D. Lazarus, J.D., LL.M., MSCCJune 15, 2011
Academy of Special Needs PlannersAcademy of Special Needs Planners
Presentation forPresentation for
The Settlement TeamThe Settlement TeamCreating the Team & Managing Relationships
Jason D. Lazarus, J.D., LL.M., MSCC1500 E. Robinson Street
Orlando, FL 32801407-977-3387
OverviewOverview
How is SNSP different?How is SNSP different?
Settlements are high pressure
Time constraints – needs to be done yesterday
3rd party dictating terms (the defendant)
Court approval issues
Injury victims are just different!
How is SNSP different?How is SNSP different?
Have to be well versed in multiple disciplines:Medicaid/SSIMedicare Secondary Payer ComplianceGuardianshipLien resolutionTaxation of DamagesQualified Settlement FundsStructured Settlements
How is SNSP different?How is SNSP different?Have to manage the “settlement team”
PI lawyerMedicare set aside consultantLien resolution specialistCPATax lawyer (taxation of damages expert)Structure broker/settlement plannerFinancial advisorANDYourself, SNSP attorney
SNSP GoalsSNSP Goals
Protect injury victim’s public benefits
Help transition to post settlement life
Assemble settlement planning team
Consult as to the “form” of settlement
Assist trial lawyer successfully conclude settlement
Help implement a proper settlement plan
SNSPSNSP
DeliverablesDeliverables
What Does a SNSP Attorney Provide?What Does a SNSP Attorney Provide?
Expert advice & guidance on proper legal techniques
for PI atty & settlement plannersGuardianship and Probate servicesOpinion letters
What Does a SNSP Attorney Provide?What Does a SNSP Attorney Provide?
Trust drafting * SNT* MSAT* MSA/SNT (dual eligible)* SPT*QSFs
Court ApprovalEstate planning Services
SETTLEMENT TRUSTSSETTLEMENT TRUSTS Trust Primary Features When To Use
Settlement Trust/ Investment Trust
Provides spendthrift protection taxable payments plus liquidity and flexibility
Timing and/or amounts of future financial needs are unpredictable or event contingent
Special Needs Trust Preserves SSI & Medicaid Eligibility
To prevent losing SSI & Medicaid Benefits
Medicare Set-Aside Trust
Preserves Medicare Eligibility
Medicare Beni or reasonable expectation
468B – Qualified Settlement Fund
“Holding Tank” - Allows for “cash” settlement but avoids CR
Need to obtain funds from D immediately & need time to plan
Types of FeesTypes of Fees
Normal fees for services
Expert fees
Consulting Fees
Opinion letter – flat fees or hourly
The TeamThe Team
Team Members – General ConsiderationsTeam Members – General Considerations
Determine necessary team members
Assemble the team early on in process
Set reasonable expectations with everyone
Explain timing issues
Make sure everyone understands their role
Team Members - Trial AttorneyTeam Members - Trial Attorney
• Is part of the TEAM• Your primary referral source for SNSP
work• Starts the process – client referral• Has the relationship with the client (trust
factor)• Provides initial intake• Must be walked through the entire process
Team Members - Trial AttorneyTeam Members - Trial Attorney
MANAGING THE RELATIONSHIPKeep in mind
1. Time Crunch (why?)2. Ego3. Tension between trial attorney & client4. Disharmonious relationship with defense counsel5. Referring attorney dynamics
Team Members - Trial AttorneyTeam Members - Trial Attorney
Understanding Trial Attorneys
Professional litigator – trained to listen & discern sincerityIf you write it down, they will keep it and it can haunt youDon’t ever “wing it” –
if not sure, research and get back to attyFear being sued for malpractice
Marketing tip – play off this fear (prevention of malpractice)
Want to transfer liability to YOU
Team Members - Trial AttorneyTeam Members - Trial AttorneyUnderstanding Trial Attorneys
Want to be educated, but telling them once is never enough
Be a problem solver for trial attorneyCheck your own ego at the doorRemember you need to help them settle the case
the right way So THEY can get paid
Team Members - Trial AttorneyTeam Members - Trial Attorney
Marketing
Join state TLA & local TLAPublishList ServeSeminars
Become the trial lawyer’s “go to” settlement lawyer
Team Members - Lien ResolutionTeam Members - Lien Resolution
• A powerful resource to assist in resolution of difficult cases
• Fee based service provider (can be flat fee or contingency)
• May have existing relationship with trial attorney• Probably not a referral source
Team Members - Lien ResolutionTeam Members - Lien Resolution
Why do you need a lien resolution partner?MedicareMedicaidERISAMilitaryHospitals & other providersPrivate Health
Team Members - Medicare Set AsidesTeam Members - Medicare Set Asides
• Need allocation services AND administration• Allocation services are flat fee• MSA Admin• Can be MSAT • Custodial Agrmt
• Potential Referral source for “dual eligible” clients
Team Members - Medicare Set AsidesTeam Members - Medicare Set Asides
• Allocations – selecting a partner - considerations• LMSA experience• Plaintiff or defense bent?
• Reduction methodologies• Atty fees• Apportionment
Team Members - Medicare Set AsidesTeam Members - Medicare Set Asides
MarketingOrganizations• Join NAMSAP• Participate in list serve• Attend annual meeting
Consider getting MSCC designation
Team Members – CPA/Tax AttyTeam Members – CPA/Tax Atty
Taxation of Damage IssuesOrigin of claim issues (legal mal)104(a) (PI, WC or Disability)Taxable damages (discrimination, etc.)
Confidentiality – AmosAdvice on tax efficient strategies
Team Members - Structured SettlementsTeam Members - Structured Settlements
Good potential referral source for businessGets into cases earlyWhat can they refer?
SNTMSATQSF
May have very close relationship with plaintiff counsel Trust factor with attorney AND client
Team Members - Structured SettlementsTeam Members - Structured Settlements
MANAGING THE RELATIONSHIPKeep in Mind
The good, the bad & the UGLYStructures are not inherently badAnnuity brokers (one trick pony) vs Settlement PlannersOver structuringEstablished relationships with trust companies and other providers
Team Members - Structured SettlementsTeam Members - Structured Settlements
SNSP STRUCTURED SETTLEMENTS USESfund
MSAWhy?
SNTIrrevocable assignment
May lead to QSFs
Team Members - Structured SettlementsTeam Members - Structured Settlements
MarketingNSSTASSP
List serve
Surviving the relationship
Team Members - Trust CompanyTeam Members - Trust Company
Experience working with PI victimsHandle settlement trusts, MSATs & SNTsAccept smaller settlements
Intake Intake ConsiderationsConsiderations
Intake - SNSPIntake - SNSP
Pre-Settlement
Obtain as much info about casePlaintiff/DefendantType of caseInjuries
Get a copy of Life Care Plan and Economic ReportWhy?
Intake - SNSPIntake - SNSPPre-Settlement
Copy of financial needs analysis
Copy of MSA allocation
Lien info
Hint: Get cozy with staff/paralegals
Timing IssuesTiming Issues
TypicalBest Practice
Settlement Continuum
Timing Issues - ManagingTiming Issues - Managing
Have to train referral sourcesExplain critical issues in terms of timing
Financial decisions could impact planning techniques
Tool to avoid timing problems (QSF)
Managing the Relationship Managing the Relationship Injury VictimInjury Victim
Managing Injury VictimsManaging Injury VictimsUnderstanding the Client
Haven’t won the lottery – tragic accidentGenerally unsophisticated Total trust and dependence on trial attyUsually deeply in debtMarriage and relationships a messMany fighting depressionNeed to know you are there to help
Managing Injury VictimsManaging Injury VictimsUnderstanding the Client
If client isn’t eligible for needs based benefitsConsider:
Anecdotal evidence suggests most injury victims spend down their settlements
Need to address this issue head on with the client Hint: solution is settlement preservation trust