Category Archives: Practice Areas

Qualified Settlement Funds

A qualified settlement fund (also known as QSF or 468b fund) is a type of trust and a powerful tool that encourages and simplifies lawsuit settlements. A QSF shelters the proceeds without constructive receipt by the plaintiff, which could trigger tax consequences or public benefit ineligibility. Among other benefits, a QSF provides the plaintiff additional time to resolve any claims or subrogated interests against the proceeds; arrange long-term planning for the proceeds, including structuring the funds; or fund a disability trust for the plaintiff’s immediate needs. The general requirements for a settlement fund to qualify as a QSF are as follows:

  • Must be created by a court and be subject to continuing court supervision;
  • Must resolve claims related to the subject of the lawsuit; and
  • Must qualify as a trust under state law.

Though QSFs are extremely flexible and can be utilized to help settle a variety of cases, it has become a common mechanism used in personal injury settlements for incapacitated persons. Rule 16 of the Colorado Rules of Probate Procedure (Rule 16) is the legal authority which sets forth the process by which court approval can be sought on behalf of a minor or incapacitated/disabled adult who is expected to receive a proposed settlement, life insurance proceeds, or a distribution from a decedent’s estate.

The creation of a QSF has numerous benefits in such cases including:

  • allows the claimant to receive funds early without constructive receipt for tax purposes;
  • removes the defendant from litigation without further liability;
  • allows the defendant to take a tax deduction that otherwise would not be available until the funds are distributed to the claimant;
  • allows the claimant to make his or her own determination about distribution of funds;
  • provides practitioners with the immediate financial resources to fund future litigation against additional defendants;
  • provides time to make final determinations on the allocation of funds;
  • provides time to decide how best to preserve government entitlement benefits for the claimant;
  • provides time to establish a special needs trust; and
  • provides time to obtain financial counseling.
  • provides time to determine the appropriate role and underwriting of a structured settlement annuity
  • provides time to verify and negotiate liens and/or subrogation claims
  • can fund a special needs trust for immediate medical needs of the claimant while other issues are resolved

For a more detailed explanation of the use of qualified settlement funds in personal injury settlement cases, you may review the article authored by Sarah L. Golombek published in The Colorado Lawyer entitled “Using Qualified Settlement Funds in Personal Injury Settlements for Protected Persons.”

Sarah L. Golombek has assisted numerous personal injury counsel settling cases on behalf of minors and incapacitated person in the drafting and creation of qualified settlement funds. If you think that a qualified settlement fund is a mechanism that would be useful in your particular legal matter, The Law Office of Sarah L. Golombek, LLC is more than happy to assist you.

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Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Consulting in Personal Injury Settlements for Minors and Incapacitated Persons

The field of Elder Law encompasses many different practice areas. In addition to the more common practice areas of estate planning, probate administration, and protective proceedings, Elder Law also deals with related areas of the law including disability law, fraud/exploitation, and landlord/tenant issues. One particular area which an elder law attorney often becomes involved in is the area of personal injury law. In particular, when a personal injury matter involves a settlement on behalf of a plaintiff who is a minor or an incapacitated adult, it is common for an elder law attorney to be consulted regarding the inherent protective issues involved. Such protective issues can include:

• Whether receipt of settlement proceeds will disqualify the plaintiff for public benefits they are receiving such as Medicaid or SSI;
• Whether it is necessary to obtain probate court approval of the settlement due to the plaintiff’s diminished legal capacity;
• Whether the appointment of a guardian or conservator is necessary for the plaintiff;
• Whether a Medicare Set-Aside Trust (see Glossary for definition) is necessary in order to cover projected lifetime medical costs covered by Medicare;
• Whether it is necessary to create a Special Needs Trust for the plaintiff in order to preserve his/her public benefits;
• Whether an estate plan for the protection of the plaintiff’s settlement funds is appropriate; and
• Whether the creation of a Qualified Settlement Fund (see Glossary for Definition) is appropriate.

Sarah L. Golombek has been consulted by and worked with numerous personal injury counsel in a variety of cases including claims of personal injury, medical malpractice, premises liability, wrongful death, and worker’s compensation. The Law Office of Sarah L. Golombek, LLC provides the following services to personal injury counsel:

• Petitioning and obtaining probate court approval of settlements for minors and incapacitated adults;
• Assisting personal injury counsel in obtaining probate court approval of their contingent fees;
• Petitioning the probate court for a guardian or conservator for the plaintiff in a personal injury lawsuit;
• Counseling regarding the effects of the receipt of settlement proceeds by a plaintiff on public benefits;
• Drafting and obtaining court approval of special needs trusts for plaintiffs on public benefits;
• Counseling regarding the need for a Medicare Set-Aside Trust (MSA);
• Preparation of appropriate estate planning documents in order to protect the plaintiff’s settlement funds; and
• Counseling regarding whether a Qualified Settlement Fund (QSF) (see Qualified Settlement Fund Practice Area) is appropriate, and if so, drafting the QSF and petitioning the court for approval.

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Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Probate Litigation

The fact that a person leaves a will does not guarantee that his/her property will be distributed according to the will’s terms. A court must generally provide an opportunity to allow others to object to the will, and a legal challenge, called a will contest, may be brought by anyone with an interest in the will who wishes to challenge the validity of the will or the terms of the will. Typical bases for a will contest include allegations that a will was inadequately executed, invalidated by a later will, is ambiguous, or was the result of incapacity, forgery or undue influence. In addition to will contests, there are numerous other types of probate litigation including breach of fiduciary duty actions (see fiduciary representation practice area), objections to a guardianship or conservatorship petition (see Guardianship or Conservatorship practice areas), and more.

The Law Office of Sarah L. Golombek, LLC has extensive probate litigation experience. If you are engaged in a probate dispute that may involve litigation, The Law Office of Sarah L. Golombek, LLC can help counsel you about the weight of your case and discuss the legal options available to you.

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Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Fiduciary Representation

Where there is a relationship of trust and reliance between two people, that relationship gives rise to a fiduciary relationship. A fiduciary is subject to a higher degree of duty that obligates that fiduciary to act in good faith and with care and loyalty to further the other’s best interests. Examples of fiduciaries include:

• A guardian appointed by a court to care for an incapacitated person and manage his/her personal/medical affairs;

• A conservator appointed by a court to manage the assets and/or financial affairs for a person who needs assistance;

• An agent under a person’s medical and/or financial power of attorney;

• A personal representative/executor who is appointed by a court to administer the estate of a deceased person; and

• A trustee who court appointed or nominated in a trust who is responsible for administering the trust assets.

Taking on any one of the above fiduciary roles is an enormous responsibility and one that should not be undertaken without being informed about the duties it entails. Colorado has enacted numerous statutes specifically detailing the fiduciary duties of those fiduciaries listed above. In some cases, family members or other interested persons allege that a fiduciary did not comply with his/her fiduciary duties. Sometimes this results in a lawsuit against the fiduciary. This type of lawsuit is called a breach of fiduciary action. In such cases, it is recommended that the fiduciary hire legal counsel to advise them regarding their actions and defend their decisions. In certain circumstances , it can be extremely beneficial for a fiduciary to hire legal counsel at the outset of their fiduciary role to advise him/her about their duties and to seek advice before he/she take certain actions.

The Law Office of Sarah L. Golombek, LLC has extensive experience representing fiduciaries in breach of fiduciary duty actions as well as representing interested persons alleging a breach of fiduciary duty. If you are engaged in a dispute that may involve a breach of fiduciary duty, The Law Office of Sarah L. Golombek, LLC can help counsel you about your rights and legal obligations.

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Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Public Benefit Assistance

Contrary to popular belief, it is common that Medicare and private health plans do not cover the cost of long term care, i.e., nursing home, and/or certified medical assistance in the home or assisted living. The only way to protect oneself is to plan for the future. This means either taking out long term care insurance, provided you can be underwritten and it is affordable, or it means qualifying for the government program known as Medicaid. There are many different Medicaid programs available. The best medical planning is done at least 5 years in advance, but can be done at any time, even at the time of admission.

In addition to Medicaid, there are numerous additional public/government benefits/programs available to the elderly, disabled, and persons of low-income including but not limited to Social Security, Medicare, Supplemental Security Income (SSI), and Social Security Disability Insurance (SSDI). Eligibility for such benefits and for Medicaid in particular, can be extremely complex and vary case by case.

If you or a loved one believe that you are eligible for one or more government programs/benefits, The Law Office of Sarah L. Golombek, LLC can assist you in determining which program you may be eligible for, in addition to helping you navigate through the complicated application process. The Law Office of Sarah L. Golombek, LLC can also assist those wanting to plan in advance for their public benefit eligibility.

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Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Special Needs Planning

It is common for families to have a family member who has a disability or special needs. While the government provides financial assistance through programs such as Medicaid, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI), it is rarely sufficient to meet all of the needs of the disabled. Special needs planning, and specifically, a special needs trust is a crucial legal tool which holds assets to care for and protect the elderly and persons with disabilities while allowing them to continue to receive their government benefits. Failure to plan for a disabled family member could jeopardize his/her government benefits. There are numerous advantages to special needs planning and the use of a special needs trust including:

  • preserving eligibility for government benefits;
  • providing funds to pay for “extras,” (e.g., homes, automobiles and prescription drugs);
  • protecting a case settlement from being immediately depleted due to the high cost of health care;
  • keeping assets within the family; and
  • giving family members much needed peace of mind by providing funds to care for their loved ones who may not be able to care for themselves.

The Law Office of Sarah L. Golombek, LLC is here to assist you in planning for your loved one with special needs in order to provide them with the quality of life they deserve. Such assistance includes:

  • Applying and qualifying for SSI and/or SSDI benefits for a person with disabilities
  • Applying and qualifying for Medicaid for a person with disabilities
  • Providing for a person with special needs in your Will
  • Applying for Guardianship
  • Setting up a Special Needs Trust
  • Counseling regarding the need for a Medicare Set-Aside Trust (see Glossary for Definition)
  • Advising you regarding long term care and asset preservation and protection planning for loved ones with disabilities
  • Asset protection plans
  • Family trusts and agreements
  • Family care agreements
  • Durable powers of attorney
  • Health care proxies and living wills

Call Today for a Free Consultation
Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Probate and Trust Administration

Probate/estate administration refers to the process by which a court appoints an individual to administer and distribute the assets of a deceased individual (referred to as a decedent). Since administering an estate is a multifaceted and often complex process, family members or others who have been nominated in the decedent’s will as the personal representative or executor of the estate (ie. the person responsible for gathering the estate assets, paying the decedent’s debts and distributing the assets to the estate’s beneficiaries), will require the assistance of a probate attorney to assist them with the estate administration. Additionally, heirs or beneficiaries to an estate often request representation by a probate attorney to represent their interests in an estate to gain a better understanding of how long the estate administration process is expected to take, that the administration is being handled appropriately, in order to determine their share in the estate, to insure that they receive the share they are entitled to, and that their inheritance does not negatively impact their own estate plan or disqualify them for any public benefits they are receiving. Moreover, often a personal representative/executor (referred to as a fiduciary) of an estate requires representation in their fiduciary capacity to defend their administration of an estate.

Similar to an estate administration, a trust administration refers to the process by which a trustee of a trust administers the assets of the trust either on behalf of lifetime beneficiaries, or upon the death of the person who created the trust (referred to as the settlor) to his/her beneficiaries. As with an estate administration, often a trustee hire a probate attorney to assist him/her with the trust administration or to defend him/her in their fiduciary capacity. Likewise, beneficiaries of a trust often seek representation by a probate attorney to represent their interests with respect to the administration of a trust.

The Law Office of Sarah L. Golombek, Esq. is experienced in handling estate and trust administration and in particular:

  • Representing personal representatives/executors in administering an estate;
  • Representing trustees in administering a trust;
  • Representing beneficiaries of an estate;
  • Representing beneficiaries of a trust;
  • Representing a personal representative/executor in his/her fiduciary capacity; and
  • Representing a trustee in his/her fiduciary capacity.

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Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Conservatorships

Similar to a guardianship, a conservatorship proceeding is the process in which the court appoints a conservator for a person (typically a minor, disabled, or elderly person) and does not have effective powers of attorney in place, and who requires assistance with the management of their financial affairs or with respect to assets they currently own or are expected to receive (for instance settlement proceeds, governmental income or an inheritance). Unlike a guardianship, a conservatorship appointment does not necessitate a finding that the person requiring assistance is legally incapacitated, but rather, a showing that such person (referred to as the protected person) is unable to manage property and business affairs because they are unable to effectively receive and evaluate information or both or to make or communicate decisions even with the use of appropriate and reasonable available technological assistance due to a disability or impairment.

Examples of situations in which a conservator may be required include:

  • the need to manage the assets/financial affairs of a parent or relative who has Alzheimer’s or dementia;
  • the need to resolve family disputes over the management of assets/financial affairs of a parent or relative;
  • the need to manage finances/assets received by a minor as a result of an inheritance or personal injury settlement; and
  • the need to manage the governmental income of a disabled adult child.

Like the guardianship process, a conservatorship requires the filing of court documents, the investigation by a Court Visitor who reports to the court regarding the need for a conservator and appropriateness of the nominated conservator, attendance and presentation of evidence at a court hearing, and the post-appointment filing of court documents and reports. As a part of a conservator’s annual reporting duties, a conservator is required to file annual accountings with the court indicating how the conservatorship assets were spent.
As with a guardianship, given the complicated and emotional process related to a conservatorship proceeding, children and other relatives of the protected person, and especially those living out of state, frequently require legal advice about their legal rights and obligations with respect to such matters. In specific, family members and in particular those who are petitioning the court for a conservatorship on behalf of a loved one, often require assistance with respect to setting forth their position regarding the need for the appointment of a conservator, who the appointed conservator should be, the development of a financial plan for the management of the protected person’s assets, especially when a conservatorship matter becomes adversarial due to family conflicts.

The Law Office of Sarah L. Golombek, Esq. has extensive experience handling conservatorship proceedings and contested conservatorship proceedings and in particular:

  • Representing family members or other interested persons in petitioning the court for a conservatorship on behalf of their relative;
  • Representing family members or other interested persons in objecting to or setting forth their position with respect to a conservatorship proceeding;
  • Advocating for an person over whom a conservatorship proceeding has been initiated in expressing his/her wishes with respect to the conservatorship proceeding; and
  • Representing a court-appointed conservator with respect to a conservatorship proceeding.

 

Call Today for a Free Consultation
Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Guardianships

In the event an individual is unable to manage his/her own affairs and does not have effective powers of attorney in place, there is a legal mechanism to protect such persons. This is called a guardianship proceeding and typically involves the court appointment of a guardian for a minor, disabled, or elderly person who is found legally incapacitated and is unable to manage their personal and medical affairs.

Examples of situations in which a guardian may be required include:

  •  the need to care for a parent or relative who has Alzheimer’s or dementia;
  •  the need to resolve family disputes over the care of a parent or relative;
  • parents who need the requisite legal authority to care for an adult disabled child; and
  • friends or relatives of a minor whose parents are temporarily or permanently unable or unavailable to care for such minor child.

The guardianship process requires the filing of court documents, the investigation by a Court Visitor who reports to the court regarding the need for a guardian and appropriateness of the nominated guardian, attendance and presentation of evidence at a court hearing, and the post-appointment filing of court documents and reports.

Given the complicated and emotional process related to a guardianship proceeding, children and other relatives of the incapacitated person, and especially those living out of state, frequently require legal advice about their legal rights and obligations with respect to such matters. In specific, family members and in particular those who are petitioning the court for a guardianship on behalf of the incapacitated person, often require assistance with respect to setting forth their position regarding the need for the appointment of a guardian, who the appointed guardian should be, the development of a care plan for the ward and the development of a plan for the management of the ward’s assets, especially when a guardianship matter becomes adversarial due to family conflicts.

The Law Office of Sarah L. Golombek, Esq. has extensive experience handling guardianship proceedings and contested guardianship proceedings and in particular:

  • Representing family members or other interested persons in petitioning the court for a guardianship on behalf of their incapacitated relative;
  • Representing family members or other interested persons in objecting to or setting forth their position with respect to a guardianship proceeding;
  • Advocating for an incapacitated person in expressing his/her wishes with respect to a guardianship proceeding; and
  • Representing a court-appointed guardian with respect to a guardianship proceeding.

Call Today for a Free Consultation
Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.

Estate Planning

Nearly everyone over the age of 18 needs to have in place at least four basic estate planning documents:

  • Will/Trust
  • Medical Power of Attorney
  • Financial Power of Attorney
  • Living Will

It is best to have an experienced, licensed lawyer who is familiar with the laws of the state in which you live, review your situation with you, answer your questions, and provide a custom drafted estate plan for you. Additionally, by using an attorney you trust, if you should have any changes to your estate plan in the future, the attorney can do so quickly and easily without having to redraft all of your estate planning documents. The benefit of having an estate plan is that it allows you to:

  • Plan for your and your family’s future;
  • Make your wishes known regarding how you want your assets distributed;
  • Make your wishes known regarding end-of-life circumstances;
  • Direct who you want to manage your medical affairs should you become incapacitated;
  • Direct who you want to manage your financial affairs should you become incapacitated;
  • Direct who you want to be appointed as your guardian and/or conservators should one be necessary;
  • Direct who you want to care for your minor children if something should happen to you and/or your spouse;
  • Direct who you want to manage your assets on behalf of your minor children should something happen to you and/or your spouse; and
  • Direct how you wish for your last remains to be disposed of (ie. where do you want to be buried, what type of ceremony do you want).

The Law Office of Sarah L. Golombek, LLC has a personalized approach to providing clients with customized estate plans prepared in a quick and affordable manner utilizing reasonable flat rates for your individual estate planning needs.

Call Today for a Free Consultation
Call (720) 305-9900 or fill out the Online Contact Form to schedule a free, no obligation consultation.