To keep assets from disappearing or being claimed by a creditor, your estate plan should…
An attorney at times is bound to come across a situation where their area of practice may overlap with another distinct and separate type of law. To name just a few instances, estate planning attorneys often need to know various aspects of business, real estate and elder law; matrimonial attorneys oftentimes encounter estate planning, real estate and business issues; and criminal defense lawyers may also be incorporating immigration law into their practice.
One such interdisciplinary “cross-pollination” arises when a public benefits recipient becomes a personal injury action plaintiff. Though not personally engaged in practicing elder or disability law per se, a personal injury attorney must be vigilant in protecting their client’s public benefits, both before and after the conclusion of the personal injury matter. The personal injury attorney is in the best position due to their first-hand knowledge to assist the client with proper planning for accepting their personal injury award funds. The lingering effects of failure to act timely, or at all, may be highly detrimental to the client. A prolonged inaction may cause the client to have their existing benefits reduced or lost with substantial amount of wasted time and resources spent on benefit preservation or reinstatement.
When representing a public benefit recipient, personal injury attorneys should be aware of the effect of recipient’s prevailing in their personal injury action on their eligibility for Supplemental Security Income (“SSI”) and Medicaid. Both programs are “needs-based.” Their benefits are provided as a last resort to those persons who do not have alternative sources of payment for the costs of their daily living and health care, respectively.
Each public benefit program has its’ own guidelines and requirements. Planning for a benefit program recipient would depend on the interplay between the amount of award and the actual types of benefits the client is eligible for. In a most general sense, one way or another the client’s eligibility for various programs would depend on the client’s level of income, resources (savings), or both.
“Income” is any payment a client receives periodically, including, for example, a client’s pension or a retirement account distribution. A “resource” is either funds readily available or certain tangible assets that client could theoretically liquidate to pay for goods or services prior to a specific program like Medicaid or SSI covering those costs. Even an amount of $1 over the SSI and Medicaid guidelines could, and most likely will, make the client “overresourced” and, thus, ineligible for the public benefits. Ironically, without proper advance planning a client receiving a personal injury award may actually end up in a worse off position than if they did not institute a legal action at all.
The personal injury award funds are deemed available to the client once they are deposited into the attorney’s escrow account. This is true regardless the settlement proceeds not being distributed to the Client for several weeks, or even months. The client should be meeting with an elder law attorney to work out a comprehensive plan of action long before they sign their personal injury release documents.
With advance proper planning, depending on the demands of a client’s particular benefit program, the client may be able to keep or utilize a substantial portion of their pubic benefits. However, without any planning at all, a client may end up being ineligible for their benefits. What’s worse, they could face possibly owing a part or all of their personal injury award as a reimbursement for services and payments they received during their ineligibility period.