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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