The Academy of Special Needs Planners Presents: Creating the Team & Managing Relationships Presented by: Jason D. Lazarus, J.D., LL.M., MSCC June 15, 2011.

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

[email protected]

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

Jason D. Lazarus, J.D., LL.M., MSCC877-977-3387

[email protected]

QUESTIONS?