The damages recovered in personal injury lawsuits can be resources for persons with special needs, but the damages can cause problems for people who need public benefits. Many government programs involve means testing. Receipt of settlement benefits might cause a person to lose eligibility for a number of benefit programs. Plaintiffs who are 65 and older have problems as well. In this report attorney Robert Fleming explains what can be done to help this older group of people with special needs.

Fleming explains that special needs trusts, both standalone and pooled trusts, are tools available to help a person with special needs maintain an asset backstop and still qualify for needs-tested benefits. Standalone and pooled special needs trusts are explained in this report on the Legal Broadcast Network. Fleming says that the standalone trust—and in many states the pooled trust as well—is not an option for someone who is over age 65. “One of the best tools is taken away” from a senior who settles a personal injury claim.

Fleming says that protecting benefits for seniors can be a problem. It may be necessary to analyze a client’s situation to see what a client could possibly do without and what is essential in terms of benefit programs. Fleming notes that this is not usually a problem when working with a younger client.

Sometimes, the solution is to purchase an annuity, particularly for married beneficiaries. In some states, this is a workable solution. Sometimes, the most that can be done is to improve conditions for an older client with special needs for a shorter period than the client’s lifetime. Some of the proceeds can be used to pay for a higher level of care for the client without divesting the client of the benefits from a public benefit program.

What all of this underscores, Fleming points out, is how important it is for a person with special needs, especially one 65 or older, to work with a qualified attorney who is knowledgeable in the law the applies in cases where a personal injury settlement is involved. For example, a client who is 65 might benefit from using the settlement proceeds to provide support during rehabilitation from an injury. A person who is 75 will have a shorter life expectancy and a lower likelihood of being able to rehabilitate, so an attorney would need to keep those factors in mind in working out the best arrangement for a client.

Robert B. Fleming is a partner in and co-founder of Fleming & Curti, PLC of Tucson, Arizona. He is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona's Board of Legal Specialization, and he is also a Certified Elder Law Attorney through the National Elder Law Foundation. He is also a member of the Special Needs Alliance. The Legal Broadcast Network is a featured network of Sequence Media Group.