By Guest Author, Evelynn Passino, J.D. – Executive Director of Pooled Trust Services
Editor: Jason D. Lazarus, J.D., LL.M, MSCC, CSSC
We hear the same thing from attorneys over and over: I secured a substantial recovery for my client, but I am concerned they are going to blow it. What can I do?
The reasons why they feel that way about their client vary. The client suffered a mild brain injury but isn’t legally incompetent. The client has a history of addiction or a gambling problem. The client has friends or family members who may try to take advantage. The client is not mature or financially savvy. The client is too nice and doesn’t know how to say no. The list goes on.
One method that takes care of clients in any of the above situations is to pair a structured settlement with a trust. A structured settlement is created when the defendant funds an annuity for the benefit of the plaintiff. This funding must not be constructively or actually received by the plaintiff, so it is important to make the decision about whether a structure will be used before money changes hands. If it goes to the attorney’s trust account, the option to structure is off the table. The annuity will pay out in increments for a set number of years or may be guaranteed until the client dies. The increments can pay monthly, quarterly, semi-annually, or annually.
There are several benefits to utilizing a structured settlement. First, an annuity will ultimately get more money, over time, in the client’s pocket than they would get from a lump sum. Second, structured settlements are protected from creditors, and generally safe in the event of divorce or bankruptcy. Third, the client will not have the opportunity to spend all of their money quickly because they will never have it all at once.
One risk with structures, however, is that if the structure pays to the client directly, they can assign it to a factoring company for quick cash (selling their structured settlement to a company like J.G. Wentworth). In many cases, they are offered pennies on the dollar, but it may seem like a good deal to the desperate or uneducated client. To protect against this, the structure can be set up to pay to an irrevocable settlement trust for the client’s benefit. Factoring is still an option, but only if the trustee consents. Any trustee worth their salt would only consent to factoring in extremely limited set of circumstances when the loss of the future payments is still in the best interest of the client.
For example, if the client’s entire net was structured, resulting in modest monthly payments, they would have to save their money (or take out a loan) to make a major purchase such as a house or a car. In the right circumstances, a trustee might consent to factoring, but it would be a tough battle given how much the client would have to give up. To avoid this situation in the first place, it is recommended that the trust receive a partial lump sum to “seed” the trust and structure the rest. That set-up provides the best of both worlds: there is liquidity in the event the client has an immediate need to make a major purchase, but the client still gets all the benefits of structuring. It also is cost efficient and tax advantaged. It is cost efficient since trustee fees are less overall with less cash going into the trust and future periodic payments flowing in over time. It is tax advantaged because the structured settlement is a tax-free investment while monies invested in the trust are taxable so with less cash in the trust, taxes are overall lower.
Some clients may be resistant to this, however. When the client creates a trust, the money is still theirs, but they lose much of their ability to control it. Trusts can be set up to pay a monthly stipend or give the client the right to withdraw their funds at a certain point, but while the funds remain in the trust, they can only access them through the trustee. For that reason, a trust is not necessary or right for every client; but for those who it does work for, it’s the difference between struggling after they’ve squandered their money and living comfortably for the rest of their life.
Jason D. Lazarus is the managing partner and founder of the Special Needs Law Firm; a Florida law firm that provides legal services related to public benefit preservation, liens and Medicare Secondary Payer compliance. He is also the founder and Chief Executive Officer of Synergy Settlement Services, which offers healthcare lien resolution, Medicare secondary payer compliance services, public benefit preservation and complex settlement consulting.