The creation of a special needs trust is essential to protecting the interests of a disabled client who is benefiting from an asset sensitive benefit program. However, some government benefit programs are not asset sensitive
Healthcare providers seeking to enforce liens in federal court have even been forced to pay attorney’s fees after having their actions dismissed.
The defendant’s estate must be administered for the case to proceed, however sometimes it falls upon the plaintiff’s firm to jump start this process. When no one related to the decedent/defendant pursues probate, the estate is typically without significant assets. In a situation where no family member or acquaintance of the defendant takes the initiative to administer the estate there are several options to consider
For an individual to be eligible for a special needs trust in Florida, they must be under 65 years old and disabled as defined in as defined in section 1614(a)(3) of the Social Security Act. For clients over the age of 65, a Pooled Trust under 42 USC 1396p(d)(4)(c) is an appropriate. Here, we will address trusts for individuals under 65 funded through a personal injury settlement.
Because minor settlements netting more than $15,000.00 to the minor already require a guardian of the property (a different role than a GAL) to be appointed, the exception contained in section 744.3025(1)(e) is applicable more often than not.
Sometimes, families of developmentally disabled adults will execute Powers of Attorney to facilitate day to day transactions made on behalf of their disabled relative. Unfortunately, those Powers of Attorney are not legally valid, as the disabled principal lacks the requisite competency to execute the document.
While Florida’s Wrongful Death Act does not allow individual survivors to file separate wrongful death actions (only the personal representative has authority to file), Florida case law provides a right for individual survivors to hire separate counsel, and entitles that outside attorney to be compensated from the settlement.
Typically, when a family has lost a loved one and is consulting with your firm regarding a wrongful death lawsuit, a personal representative has not yet been appointed. In that circumstance, it is prudent to ensure that you are contracting with the party that has preference under Florida Statute section 733.301.
Probate firms with practices comprised of mostly non-settlement related cases may not have the requisite knowledge of Florida’s statutory settlement schemes and related case law to (1) protect settlements from creditors, (2) ensure efficient settlement approval, and (3) protect the interests of the injury firm securing the settlement.
Section 786.21 of Florida’s Wrongful Death Act provides a statutory framework for wrongful death claims, and outlines six categories of damages available to litigants. These categories are (1) lost support and services, (2) lost companionship and protection, (3) mental pain and suffering, (4) lost parental companionship, instruction, and guidance, (5) medical and funeral expenses, and finally, Read more about Designating Damages under Florida’s Wrongful Death Act[…]