As attorneys, we are trained to pursue and resolve legal issues for the benefit of our clients. Primarily, those benefits are in the form of compensation. A verdict or settlement for an injured client is intended to compensate them for their losses, cover past and future medical care, and supplement or replace a loss of the ability to earn future income. However, when cases are resolved, clients usually receive a substantial check without additional guidance on what to do with the money they received.
With a little bit of effort, attorneys can help clients maximize their recovery through a strategic settlement that provides financial security, dependable income, and support for their future needs. Discussing settlement options early can help clients understand the need to protect any money they recover and maximize the benefit to themselves.
PERSPECTIVE
A six-figure check is a significant sum of money for anyone. Individuals with wealth typically rely on professionals to manage their money and assets. Advisors help them identify and accomplish their financial objectives, like retirement, tax, or business planning. Unlike those with means and in good health, injury victims have increased physical and financial demands that affect their everyday living. Many will not have the financial resources or experience to help them preserve their settlement. Some may believe such a large sum of money will never run out.
Clients must decide how to receive their compensation, but attorneys can help them make an informed decision that may enhance their quality of life for years to come.
STRATEGIC SETTLEMENT: OFFENSE VS. DEFENSE
There are numerous settlement options available to meet clients’ financial, medical, and family needs. Injured clients can choose to safely grow their overall recovery by receiving a portion of their settlement over time or on a future date. This is known as a structured settlement, or “structure”. Unlike the services advertised by “cash now” corporations on TV and legal funding companies, structures were designed to provide greater financial security to injured victims through special tax-advantaged and protective provisions enacted by Congress in the Internal Revenue Code. There are also no fees to the client when a guaranteed structure is established as part of the settlement.
Investments such as a 401k, IRA, or Mutual Funds may offer higher potential returns than a traditional structure. However, the returns on these investments are not guaranteed and may be subject to taxes and management fees. They may also be considered an owned asset and subject to creditor liens, lawsuits, or penalties.
Attorneys can engage a qualified settlement consultant well before resolution to help educate clients and coordinate with other settlement vehicles such as trusts. My firm, Spohrer & Dodd, has had success with Nathan Evans of Arcadia Settlements in Jacksonville on cases involving minor children and adults that need guaranteed income to recover from catastrophic injuries or the death of a family member.
A Special Needs Trust is a great settlement option that can preserve eligibility for needs-based programs, such as Medicaid or Supplemental Security Income (SSI). Pooled trusts are a cost-efficient alternative to standalone trusts in the right situation.
ABLE accounts allow disabled children and young adults to build savings without jeopardizing their public benefits, so long as their disability and onset qualifies. Professional administration accounts are also a great settlement tool that extend the client’s recovery by lowering the cost of future prescription medicine.
IMPORTANT CONSIDERATIONS
Appropriately timing settlement discussions with the client can be critical. Broaching this topic early can help temper client expectations while still allowing them to plan and evaluate the right tool(s) for their needs. Options like trusts and structures require lead time to prepare the required language and supporting documentation, which can be drafted while final offers are being exchanged. Waiting until the case settles or until late in negotiations may stall payments and fees, surprise the client or appear less attractive than a big lump sum.
Care should be taken to avoid constructive receipt of the settlement funds if alternatives to cash are being considered. Since an attorney is an agent of the client, depositing proceeds into a firm trust account may be viewed as constructive receipt thereby eliminating public benefits or the preferential tax-treatment of certain options.
It is never too early to educate clients on their settlement options. Structured settlements, trusts, and other options can coordinate to provide long term financial security for injury victims. An attorney who demonstrates their commitment to a client early in the case by helping them plan for the future, will also build trust and rapport with that client. Regardless of the client’s ultimate decision, the attorney can feel confident that they have done their best to enhance the injured client’s life long after the case resolved. Keith Maynard
