ABA GP Solo ELDER LAW COMMITTEE Newsletter Fall, 2009
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. Elder Law, Estate Planning & Probate forms available from ABA Elder Law, Estate Planning & Probate Seminar
2. PERSONAL INJURY SETTLEMENT PRESERVATION TRUSTS
3. REDUCING A MEDICAID LIEN
1. Elder Law, Estate Planning & Probate forms available from ABA Elder Law, Estate Planning & Probate Seminar
The ABA General Practice Division held its popular program Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice at the American Bar Association Annual Meeting in Chicago on August 1, 2009.
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Deborah Cole, Chicago, Il
Articles and forms were provided on CD. Below is a list of articles provided. If you want a few of the forms, send an email to kenvnjlaws@verizon.net and indicate which articles/ forms you want and the number of the article or form [max 5]
List of Kenneth Vercammen, Esq. Forms, Documents and Articles on CD
Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice
Sat. August 1, 2009 2:00pm -3:30pm
Hyatt Regency Hotel, Chicago ABA Annual Meeting
1 New Client schedule appointment
2 Confidential Will Questionnaire
3 Will bill
4 WILL DRAFT CO
5. Doctor Cert sign POA, will Dr
6 Thank you for Referral
7 POA DRAFT lt
8 Will Signing Instruction
9 Referral Out Another Atty fax
10 No rep
11 Recommend Will to Client
12 Post WILL
13 Client questionnaire end case.
14 POA Grantor Now
15 Wills article
16 POA Power of Attorney- article
17 LIVING WILLS
18 Gay and Lesbians- Advance Directives
19 Letter of Instruction
20 Remove Executor
21 Alzheimer, POA Guardianship
22 ANSWERS to Questions Probate
23 Estate Planning 10 Ideas
24 Executor Duties
25 Prenuptial Ag
26 Undue Influence article
27 Attorney- Client Confidentiality
28 Pick up Docs
29 Executor to Pay and Notify Creditor
30 NJlaws website & articles
31 Trusts
32 Caveat to Will
33 Central Jersey Elder articles
34 ABA Estate Plan Winter 2008
35 Estate Plan ABA Nov 2007
36 ABA ELDER News Aug 2007 GP
37ABA ELDER LAW COMMITTEE Newsletter July 2007 ABA General Practice
38 Estate Probate ABA news May. 2007
39 Elder Law ABA news February, 2007
40 INTESTACY
41 If no Will
42 Probate Release Refund Bond
43 Lincoln 17- no charge
44 Guardianship bill
45 RETAINER Probate ESTATE
46 WILL - sign front notary
47Confidentiality Lt to Client
48 Elective Share of Spouse
49 Joint Bank Accounts Upon Death
50 ABA ELDER News Spring2008
51 ABA Elder Law Newsletter • April 2008
52 ABA GP Solo ELDER LAW COMMITTEE Newsletter July , 2008
53 ABA ELDER News Fall 2008
54 ABA ELDER News Winter 2009
55 ABA ELDER News Spring 2009
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2. PERSONAL INJURY SETTLEMENT PRESERVATION TRUSTS
By Thomas D. Begley, Jr., Esquire
Studies show that over 90 percent of the time a person receiving a personal injury settlement dissipates the funds within five years. There are three reasons why this is true. The first reason is that most people are not good money managers. Many people who are victims of personal injuries have never had money and are receiving a large sum at one time. They are often unsophisticated and do not have contacts with professional investment advisors. What to most people would seem a modest sum of money appears enormous to many of these unsophisticated people, and they believe that they can spend without restriction and never exhaust the settlement funds.
The second reason personal injury victims tend to squander their settlements is that many disabled people suffer from low self-esteem and tend to buy friendship by showering people with whom they would like to be friendly with gifts. Often, unscrupulous people learn of the existence of the personal injury settlement and feel that they are entitled to a portion of the settlement. This is particularly true in some family situations. It also could be true with strangers.
The third reason that personal injury plaintiffs exhaust their settlement funds quickly is that many of them are suffering from significant pain and are constantly receiving pain medication. This medication often clouds their judgment and leaves them prey for unscrupulous people.
The real purpose of a Settlement Preservation Trust is to protect the personal injury victim from their own weaknesses and to prevent them from exploitation by others. The trust is irrevocable and, if the recovery is significant, should involve a professional trustee as either sole trustee or co-trustee with a family member. The professional trustee is responsible for managing the lump sum portion of the settlement.
A Settlement Preservation Trust can be used in conjunction with a structured settlement. In this way, the benefits of the structured settlement, including utilization of a rated age and the income tax-free nature of the payments, can be preserved. Despite the existence of the Structured Settlement Protection Act, millions of structured settlement beneficiaries manage to sell their income stream each year. The Settlement Preservation Trust can restrict the sale of the structured settlement income stream by its terms, and the involvement of a professional trustee will make such a factoring transaction both unnecessary and unlikely.
In some cases, the entire settlement can be placed in a Settlement Preservation Trust, but in most instances it may be appropriate for the personal injury victim, assuming they are not receiving means-tested public benefits, to have control over a certain percentage of the recovery with the Settlement Preservation Trust being used as a safety net for the remaining settlement.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law & Estate Administration and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 500 plus page book on Elder Law.
Begley & Bookbinder, provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
3. REDUCING A MEDICAID LIEN
By Thomas D. Begley, Jr., Esquire
There are three ways to reduce a Medicaid lien. These strategies can be used separately or in combination.
• Procurement Costs. Under New Jersey law, where a Medicaid recipient settles a case against a third party, the Medicaid lien can be reduced by attorneys’ fees and costs and expenses. Many lawyers simply ask for and receive a one-third or 25% reduction, depending on the engagement letter with the plaintiff. Expenses should always be included in the reduction. The procurement costs are based on a pro rata share. If the attorney’s fee is 33-1/3% and the costs and expenses are 10%, the total procurement cost should be 43%.
• Ahlborn. The second way to reduce a Medicaid lien is through the application of an Ahlborn argument. The Supreme Court discussed the Federal Anti-Lien Statute prohibiting liens against the property of an individual prior to his death on account of medical assistance paid. The court held that based on this statute, a state is prevented from attaching the past non-medical portion of the settlement. In the Ahlborn case, it was determined that the plaintiff received only one-sixth of the overall damages so that the right of the State of Arkansas was limited to one-sixth of the past medical claim. In order to determine the pro rata share to which the state is entitled, it is necessary to establish the reasonable value of the case. In the Ahlborn case, this was accomplished by a stipulation with the State Medicaid Agency. It is unlikely that will happen again. The stipulation could possibly be made by the defendant, but it would have to be a bona fide stipulation. A common method of arriving at the full value is to obtain a report from an expert witness, or finally a court order may be necessary. If the case is to be resolved by a settlement prior to trial and the State Medicaid Agency is unwilling to agree on a satisfactory reduction, it may be necessary to give notice to Medicaid and have the court enter the order.
• Collateral Source Rule. A third argument that could be made to reduce the Medicaid lien is the Collateral Source Rule. If a state has a Collateral Source Rule, such as exists in New Jersey, a Medicaid lien may not apply. Under the New Jersey statute, if a plaintiff receives or entitled to receive benefits for injuries allegedly incurred from any other source other than a joint tortfeasor, the benefit shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff. The purpose of this type of statute is to avoid double recovery and reduce insurance costs. The statute prevents insured plaintiffs from seeking payment for costs for which they have already been compensated. In an interesting case, the plaintiff sought to enforce an ERISA lien against a personal injury settlement. The defendant argued that the money held in escrow could not be the specific funds that belong to the plaintiff ERISA plan, because the personal injury victim never came into possession of such funds as a matter of law. The personal injury plaintiff claimed that property recovered in New Jersey is not money on which the ERISA plan has an equitable claim. The personal injury victim took the position that the plan must pursue the tortfeasor itself. The court acknowledged that it must dismiss the claim, if the beneficiary never received such money in the tort action for medical benefits. "If state law prohibits a plaintiff's claim for medical benefits paid by his or her own insurance, there would be nothing to which Rhodia could attach its equitable lien or constructive trust and the court could not grant relief."
N.J.S.A. 30-4D-7.1(b).
2 Arkansas Department of Health and Human Services v. Ahlborn, 126 S. Ct. 1752 (2006).
3 42 U.S.C. §1396p(a)(1).
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To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
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To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq., Co-Chair
Jay Foonberg, Beverly Hills, Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
