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PERSONAL INJURY SETTLEMENTS – PLAINTIFFS AGE 65 OR OLDER

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Many plaintiffs in personal injury actions are receiving means-tested public benefits such as Supplemental Security Income (SSI), Medicaid, Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), Federally-Assisted Housing, Adoption Assistance, Temporary Assistance for Needy Families (TANF), and Low-Income Home Energy Assistance Program (LIHEAP). These benefits are means-tested. Typically, the recipient of the public benefit cannot have more than $2,000 of assets in order to be eligible to receive these benefits. In 1993, Congress authorized the establishment of Self-Settled Special Needs Trusts. The personal injury victim can transfer the personal injury recovery to a Self-Settled […]

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QUALIFIED SETTLEMENT FUNDS

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by Thomas D. Begley, Jr., CELA What Is A Qualified Settlement Fund? Section 468B of the Internal Revenue Code[1] authorizes the establishment of Designated Settlement Funds or Qualified Settlement Funds. These funds are usually collectively referred to as Qualified Settlement Funds (QSFs). These funds are also sometimes called “468B Trusts.” The purpose of these funds is to permit a defendant in certain types of litigation to deposit funds into a trust and to receive a full and complete release of liability. The defendant is entitled to a current income tax deduction for the amount paid into the fund at the […]

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Filed under Estate Planning, Personal Injury Consulting, PI Special Reports, Special Needs Planning.
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Making Special Needs Trusts Last

Posted by: Begley Law Group

By Thomas D. Begley, Jr., CELA When a personal injury victim receives a settlement, one of the biggest post-settlement problems is making the money last. If the plaintiff is receiving means-tested public benefits, the monies must be put in a Special Needs Trust. How long do the beneficiary and other family members need that money to last? When the size of the settlement is significant, best practices would dictate that a three-step process be followed: Counseling Session. Step 1 is a counseling session with the person with disabilities, the family members, if appropriate, the trustee, the attorney drafting the Special […]

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Filed under Blog, Personal Injury Consulting, PI Special Reports, PIEstate, PIMedAidApp, PIMedAidPlan, Special Needs Planning, Special Needs Planning, Special Needs Trusts, Special Needs Trusts.
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The Future of the Practice of Law

Posted by: Begley Law Group

By Thomas D. Begley, Jr., CELA A Virginia State Bar Association appointed a study committee on the future of the practice of law. Perhaps New Jersey should do the same. A draft copy of the final report is interesting reading. The committee identified a number of external forces affecting the practice of law: Advances in technology; Increasing competition from non-lawyers; Generational pressures as Baby Boomers begin to transition to Millennials; Client dissatisfaction with the billable hour; Increased in-sourcing of legal services by corporate clients; and Accelerated globalization of legal services. Technology Serious efforts are now underway to develop artificial intelligence […]

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Filed under Blog, Estate and Trust Administration, Estate Planning, Long Term Care, Personal Injury Consulting.

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The Impact of Fundraisers on Beneficiaries With Disabilities

Posted by: Begley Law Group

By Thomas D. Begley, Jr. Esquire, CELA CRISIS AND KINDNESS In times of crisis, people often show just how caring humanity can be. Major humanitarian relief efforts respond to large-scale natural and unnatural disasters. Strangers donate time and money to individuals injured in tragic accidents. Often, the first instinct when you learn that someone is hurt is to give money. Unfortunately, unbeknownst to the donor, this kind and selfless act can have devastating ramifications for the injured individual and his or her family. If the injured individual or a family member is receiving means-tested government benefits, such as SSI or […]

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Filed under Blog Special Needs Planning, Personal Injury Consulting, Special Needs Planning, Special Needs Planning.
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Lien Resolution In Personal Injury Cases

Posted by: Begley Law Group

By Thomas D. Begley, Jr. Esquire, CELA When a personal injury settlement is being finalized, consideration should be given to resolving a number of liens. It is good practice to obtain information on the existence and amount of these liens early in the process, because this information may be helpful in settlement negotiations. The types of liens that often arise in personal injury cases include the following: Medicaid Medicare Medicare Advantage/Medicare Part D ERISA Veterans Administration TRICARE State Worker’s Compensation Federal Employees Compensation Act (FECA) Hospital Federal Employees Health Benefit Act (FEHBA) Federal Medical Care Recovery Act (FMCRA) Welfare Liens […]

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Filed under Blog Special Needs Planning, Personal Injury Consulting, Special Needs Planning, Special Needs Planning.
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SETTLEMENT PROTECTION TRUST – WHAT IS IT AND WHEN SHOULD I USE IT?

Posted by: Begley Law Group

By: Thomas D. Begley, Jr., Esquire, CELA CASE STUDY 1 Billy, age 6, was injured at birth. He recovers $1,000,000. Billy is not receiving any means-tested public benefits, such as SSI or Medicaid. One option is to place the $1,000,000 in the Probate Court, i.e., the Surrogate’s Office in New Jersey, or the Orphans’ Court or a restricted savings account in Pennsylvania, and to request distributions either in accordance with a budget or on an “as needed” basis. Another option is to place the money into a Settlement Protection Trust, thus bypassing the deposit into the Probate Court. CASE STUDY […]

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Filed under Blog Special Needs Planning, Personal Injury Consulting, PI Special Reports, Special Needs Planning, Special Needs Planning, Special Reports.
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Third Party Special Needs Trusts

Posted by: Begley Law Group

By Thomas D. Begley, Jr., CELA A Third Party Special Needs Trust is usually used in a Medicaid context not for the benefit of the grantor of the trust, but for the beneficiary. The grantor of the trust is typically a parent, but could be grandparent, sibling, other relative or friend. The grantor uses the grantor’s assets to fund the trust. The assets of the beneficiary cannot be used to fund a Third Party Special Needs Trust. In order for the trust to be a Special Needs Trust, the beneficiary must be disabled. Disability is usually determined ,y the fact that […]

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Filed under Blog, Estate Planning, Life Care Planning, Medicaid Planning, Personal Injury Consulting, Special Needs Planning, Uncategorized.
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HOW MUCH MUST BE SET ASIDE FOR MEDICARE IN A THIRD PARTY LIABILITY CASE?

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Once a Medicare Set-Aside Arrangement (“MSA”) has been considered, the next question is how much is necessary to fund it. If future medicals have been plead or claimed and future medicals are specifically released in a Release signed in connection with the third party liability (“TPL”) settlement, then it is likely that Medicare’s interests must be considered. That raises the question as to how to calculate the amount of the settlement intended for future medical care. It is unlikely that the Centers for Medicare and Medicaid Services (“CMS”) would accept a figure agreed upon […]

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Filed under Medicare, Personal Injury Consulting, PISpecialNeeds, PISR.
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Probate Issues in Personal Injury Matters

Posted by: Begley Law Group

By Thomas D. Begley, Jr., Esquire, CELA [This article originally appeared in The Barrister.] There are a number of situations in a personal injury case where probate issues must be addressed. Most Personal Injury attorneys work with experienced Probate Counsel to ensure that the process goes very smoothly. Once the Executor or Administrator has been appointed, that person may serve as Plaintiff in the litigation. If the Plaintiff dies during the course of the litigation, the Executor or Administrator may be substituted as Plaintiff on behalf of the estate. Situations Requiring Probate Counsel • Wrongful Death Cases. One or more persons are deceased and a personal representative, […]

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PUBLIC BENEFITS CONSIDERATIONS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Personal Injury attorneys must inquire as to whether their clients are receiving public benefits. Certain benefits are means-tested, so that if the client receives money directly those benefits are reduced or lost completely. This article will outline the common public benefits and indicate whether the receipt of a personal injury settlement will affect those benefits. Supplemental Security Income Supplement Security Income (SSI) is a means-tested federal program that provides income (a cash assistance grant) to certain aged (65 or over), blind, and persons with disabilities. The program is administered by the Social Security Administration. […]

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STRUCTURED SETTLEMENTS

Posted by: Begley Law Group

WHAT IS A STRUCTURED SETTLEMENT? Most personal injury cases now involve a Structured Settlement. The industry is now providing $5 billion annually in Structured Settlement annuities.1 A Structured Settlement is an annuity that pays the injured plaintiff a series of periodic payments over time, rather than in a single lump sum. The annuity is purchased by the defendant from a highly rated life insurance company. The issuer of the annuity agrees to make future payments to the injured party or directly to a Special Needs Trust or Settlement Protection Trust. Most states have Insurance Guarantee Funds offering protection if an […]

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USING SETTLEMENT PROTECTION TRUSTS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Settlement Protection Trusts can be very useful tools in the settlement of a personal injury case. A Settlement Protection Trust is very flexible. However, it cannot be used where an individual is receiving means-tested public benefits. A Settlement Protection Trust is essentially a Support Trust designed to provide for the health, education, maintenance and support of the trust beneficiary. A budget is prepared and the trustee can often simply write a monthly check to the beneficiary, so that the beneficiary can pay all of his or her monthly bills. In other cases, the beneficiary […]

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RESOLVING VICTIMS OF CRIME COMPENSATION, STATE WORKERS’ COMPENSATION CLAIMS, AND FEDERAL EMPLOYEE COMPENSATION ACT LIENS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA   Victims of Crime Compensation In New Jersey, certain victims of crime are entitled to compensation under the Criminal Injuries Compensation Act of 1971.[1] The Act covers individuals injured or killed by any act or omission of any other person, which is within the description of offenses listed within the Act.[2] The state has a right of subrogation against the person responsible for personal injury or death, and a lien after entry of judgment.[3] State Workers’ Compensation Claims When there is a state Workers’ Compensation (WC) claim and also a third party liability case, […]

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RESOLVING MEDICARE ADVANTAGE, PRESCRIPTION DRUG PLAN, VETERANS ADMINISTRATION, TRICARE AND WELFARE LIENS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Medicare Advantage and Prescription Drug Plans Medicare Part C, commonly known as Medicare Advantage, is a Medicare substitute program operated by private health insurance companies as a managed care plan. Medicare Part D similarly provides prescription coverage to eligible beneficiaries through private insurance plans. To the extent a reimbursement right may be created under a specific MAO plan, the Part C statute itself limits any recovery from a beneficiary to the amount actually received from a third party as payment for plan-covered expenses.[1] Veterans Administration and TRICARE Claims The Veterans’ Benefits Act[2] and the […]

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RESOLVING MENTAL HEALTH LIENS, TRAUMATIC BRAIN INJURY FUND LIENS, CATASTROPHIC ILLNESS IN CHILDREN RELIEF FUND LIENS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA   Mental Health Liens In New Jersey, a person with a mental illness who is over age 18 and is being treated in a state psychiatric hospital shall be liable for the full cost of his treatment, maintenance, and all necessary related expenses.[1] Although this statute does include a repayment obligation, it does not appear to impose a lien, particularly with respect to personal injury claims. Traumatic Brain Injury Fund The New Jersey Traumatic Brain Injury Fund is the payer of last resort for costs of post-acute care, services, and financial assistance provided to […]

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RESOLVING HOSPITAL, CHILD SUPPORT AND DIVISION OF DEVELOPMENTAL DISABILITIES LIENS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA   Hospital Liens Generally, every hospital, nursing home, licensed physician, or dentist may assert a lien for services rendered by way of treatment, care, or maintenance to any person who has sustained personal injuries in an accident as a result of negligence or alleged negligence of any other person.[1] The lien attaches to the proceeds of any settlement, award, or judgment an injured person may obtain from a third party as a result of the injuries for which services were provided.[2] Hospital liens may be difficult to negotiate; however, such liens are subject to […]

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Filed under Estate Planning, Estate Planning, Personal Injury Consulting, PI Special Reports.
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RESOLVING ERISA LIENS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Generally, employer-sponsored benefits plans are governed by the Employee Retirement Income Security Act of 1974, commonly referred to as ERISA.[1] However, certain employers and their benefits plans are not subject to ERISA. These include governmental plans;[2] church plans;[3] plans maintained solely for the purpose of complying with applicable Workmen’s Compensation, unemployment compensation, or disability insurance laws;[4] a plan maintained outside of the United States primarily for the benefit of persons who are virtually all non-resident aliens;[5] or an excess benefit plan.[6] ERISA preempts state law that “relates to” an ERISA-governed plan;[7] however, ERISA does […]

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PUBLIC BENEFITS CONSIDERATIONS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Personal Injury attorneys must inquire as to whether their clients are receiving public benefits. Certain benefits are means-tested, so that if the client receives money directly those benefits are reduced or lost completely. This article will outline the common public benefits and indicate whether the receipt of a personal injury settlement will affect those benefits. Supplemental Security Income (SSI) Supplement Security Income (SSI) is a means-tested federal program that provides income (a cash assistance grant) to certain aged (65 or over), blind, and persons with disabilities. If an individual has more than $2,000 of […]

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MEDICAID LIENS IN PERSONAL INJURY CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Assignment to State of Rights against Third Parties As a condition of Medicaid eligibility, a Medicaid applicant is required to assign to the state any rights to payment of medical care from any third party.[1] This is essentially a statutory right of subrogation. Federal law further requires that each state Medicaid program have procedures for determining the legal liability of third parties to pay for medical assistance provided by the state’s Medicaid plan, and for reimbursement of the cost of medical assistance provided, whenever recovery is feasible.[2] In New Jersey, the Attorney General is […]

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WHEN SHOULD A MEDICARE SET-ASIDE ARRANGEMENT BE CONSIDERED?

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA In settling of a personal injury case, commonly called a third party liability case (TPL), a Medicare Set-Aside Arrangement (MSA) should frequently be considered. Many Lawyers and Structured Settlement Brokers believe that if the client is not currently receiving Medicare, an MSA need not be considered. However, the Regulations require consideration of an MSA even if there is a “reasonable expectation” of receiving Medicare within thirty months. Individuals receiving SSDI or RRD are eligible for Medicare within twenty-four months of their Determination of Disability. Therefore, an MSA should be considered if: Plaintiff is receiving […]

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MEDICARE SET-ASIDE ARRANGEMENTS IN THIRD PARTY LIABILITY CASES

Posted by: Begley Admin

by Thomas D. Begley, Jr., CELA Medicare Secondary Payer Act. While there is still some controversy as to whether a Medicare Set-Aside Arrangement is appropriate in a Third Party Liability (TPL) case, there is significant authority with a proposition that Medicare’s interest must be considered in a TPL case in the same manner that it must be considered in a Worker’s Compensation (WC) case. The question is really not whether the law applies, but rather will it be enforced. How much risk is the Personal Injury attorney willing to assume on behalf of his client and on his own behalf […]

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THE FUTURE OF THE LEGAL PROFESSION

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA ABA Commission The American Bar Association has appointed a Commission on the future legal services. Legal services are expensive and are beyond the reach of many poor and even middle class individuals. Technology is becoming a game-changer and non-legal entities are engaged in providing legal services. The ABA Commission is holding a series of grassroots meetings to gather information and propose new approaches for the delivery of legal services. The Commission will look at data regarding what percentage of a lawyer’s time is actually spent practicing law as opposed to administrative, marketing, fundraising, etc. […]

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PERSONAL INJURY SETTLEMENTS: HOUSING FOR PLAINTIFFS WITH DISABILITIES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., CELA Introduction Housing for an individual with disabilities is a major concern. The purchase of a residence is a very important decision involving a number of factors. This is particularly true where the individual is receiving means-tested public benefits such as Supplemental Security Income (SSI) and Medicaid. If there is a special needs trust involved, the SSI and State Medicaid Regulations must be carefully considered. Selecting the Right Home Often, a home must be made handicap accessible. In selecting a home, care must be taken to ensure that the home can be adapted for the […]

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Filed under Life Care Planning, Personal Injury Consulting, PISpecialNeeds, Special Needs Planning.
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INCOME TAXATION OF LITIGATION PROCEEDS

Posted by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA Generally, “all income from whatever source derived” is considered gross income by the Internal Revenue Service (“IRS”).[1] However, income received as a result of a personal physical injury or a physical sickness is not considered income by the IRS.[2] However, punitive damages are considered taxable income.[3] Origin of the Claims Test The determining factor with respect to the treatment of litigation recoveries is the “origin of the claim” test. “The origin and character of the claim upon which an expense was incurred rather than the potential consequence upon the fortunes of the taxpayer” […]

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SETTLEMENT ALLOCATION IN NEW JERSEY WRONGFUL DEATH CASES

Posted by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA When a defendant causes the death of another individual by a wrongful act or negligence, that person shall be liable for damages. There are two components of the claim. One is a Survival Claim, and the other is the Wrongful Death Claim. The Survival Claim is brought by the estate, either by the executor under a will or the administrator, if the decedent died intestate. For monies received under the Survival Claim, there is usually some confusion about who is entitled to the damages payable to the estate. Generally, the monies are paid […]

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WHEN IS A MEDICARE SET-ASIDE ARRANGEMENT (MSA) REQUIRED IN A THIRD PARTY LIABILITY CASE?

Posted by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA In any recovery involving a personal injury case, the interest of Medicare must be considered.[1] Reasons Support the Argument that the Medicare Secondary Payer Act Applies to TPL Cases with Respect to MSAs There are a number of reasons to believe that MSAs are appropriate in personal injury cases. They are as follows: An informal survey of the 10 CMS Regional Offices by members of the Special Needs Alliance confirmed that each Region has taken the position that even in third party liability (TPL) cases, Medicare’s interests must be considered, and in the […]

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INCOME TAXATION OF LITIGATION PROCEEDS

Posted by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA Generally, “all income from whatever source derived” is considered gross income by the Internal Revenue Service (“IRS”).[1] However, income received as a result of a personal physical injury or a physical sickness is not considered income by the IRS.[2] However, punitive damages are considered taxable income.[3] The determining factor with respect to the treatment of litigation recoveries is the “origin of the claim” test. “The origin and character of the claim upon which an expense was incurred rather than the potential consequence upon the fortunes of the taxpayer” is the controlling test.[4] The […]

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Filed under Estate and Trust Administration, Estate Planning, Personal Injury Consulting, PIEstate.

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STRUCTURED SETTLEMENT V. LUMP SUM

Posted by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA It is important to decide in each individual case how much of a personal injury recovery should be structured and how much should be lump sum. The instinct of many personal injury attorneys is to structure as much as possible to avoid having a plaintiff squander the funds. A better approach would be as follows: Identify immediate needs. A meeting of all interested parties should be held and the first step should be to identify the immediate cash needs of the plaintiff. Does he want to purchase a house, a vehicle, take a […]

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ADVANTAGES AND DISADVANTAGES OF STRUCTURED SETTLEMENTS

Posted by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA Advantages of Structured Settlements There are a number of potential benefits to an injured plaintiff in utilizing a structured settlement: Fiscal Restraint. The structured settlement prevents the injured plaintiff from squandering the settlement. Many clients receiving personal injury settlements have never had money, have never learned financial discipline, and tend squander the funds in a short period of time. Tax-Free Income. Income from the Structured Settlement is income tax-free, if it is for a physical illness or sickness. Lifetime Income. A lifetime payment structure can provide lifetime income to the plaintiff. Alternatively, a […]

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