How Can Special Needs Trusts and Structured Settlements Fit Together? Andrew Hook Explains

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The damages recovered in personal injury lawsuits are often distributed to injured plaintiffs using structured settlements. If the injured plaintiff is a person with special needs, some special planning may be necessary to assure that the settlement is flexible enough to meet the needs the injured person may encounter in the future. Attorney Andrew Hook explains structured settlements and how a special needs attorney can help with the planning process in this report.

Hook explains that a structured settlement is an annuity that receives special tax treatment under the Internal Revenue Code. Where the entire settlement is paid into the annuity, the payments received are tax-free. Structured settlements are tools used in personal injury settlements to help assure that the settlement proceeds are not rapidly dissipated. Studies show, Hook says, that about 80% of people who receive sudden wealth will dissipate it within five years. People with permanent injuries could find themselves with no money to pay for needed care on a long-term basis. The structured settlement also provides professional management of the proceeds.

The difficulty with a structured settlement, Hook says, is inflexibility. Once the annuity is purchased, there is a set amount that will be paid out on a set schedule. The problem for persons with special needs is that they sometimes need liquidity. Current bills in a given month may exceed the amount of the scheduled payment. This is why it is important to have a special needs lawyer sit down with the plaintiff’s lawyer and the structured settlement broker to determine how much of a particular settlement should be put into the structure and how much should be retained in cash or in readily salable investments so as to provide the liquidity that might be needed to buy a house or a car, for example.

Hook explains that a special needs trust is a means of managing the assets of a person with special needs who is reliant on public programs such as Medicaid and SSI. Those programs apply a means test to determine eligibility for benefits. A special needs trust can keep some assets available for persons with special needs and avoid disqualification for benefits under the needs tests. Hook says that the solution is to have the structured settlement benefits paid to the trust rather than to the individual. This avoids the disqualification problem.

Hook points out that the payout options for a structured settlement annuity are very flexible. “You can have a level monthly amount, you can have level monthly amounts that increase with inflation,” and a number of other options designed to provide the injured person with money when it is needed and in amounts that will be sufficient. The key point is that, once the agreement has been negotiated and executed, it can’t be changed. It is important to have a knowledgeable special needs attorney involved in the working out of the settlement.

Andrew H. Hook is the president of Hook Law Center, where he practices in the areas of elder law, estate and trust administration, estate, tax, retirement and financial planning, long-term care planning, asset protection planning, special needs planning, business succession planning, and personal injury settlement consulting. Mr. Hook is a former President of the Special Needs Alliance, a nationwide network of disability attorneys. The Legal Broadcast Network is a featured network of Sequence Media Group.

Florida Case Questions Use of Dog Searches Without a Warrant, Featuring Judge Eugene Hyman

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A Florida Supreme Court says a police officer may need a search warrant before having a dog search for odors.   Referring to a recent case, retired Superior Court Judge Eugene Hyman of Santa Clara, California, says there are two separate issues.  The first issue asks whether a warrant is necessary for a house and the other asks whether a warrant is necessary for a car, and further, there are questions about the qualifications of the dog.Source: csmonitor.com

The general rule, says Hyman, with respect to qualification is that the police officer would have to testify to foundational qualifications; the officer’s qualifications in terms of using a specialized dog and training with respect to the dog.

In the case in Florida with regards to the house, it involved an anonymous informant saying someone was selling  or growing marijuana.  A police officer went up to the house with the dog and knocked on the door, went in and the dog alerted after some time.  The case was thrown out by the Florida Supreme Court and Judge Hyman says the court analogized the dog to a device similar to thermal imaging technology and said you need a warrant.  The dog, says Hyman, was being used as probable cause to get the search warrant and the argument is that it’s illegal to use the dog because the dog is like a special technology.

The U.S. Supreme Court says that thermal imaging requires a warrant and that thermal imaging can’t be a probable cause to get the warrant, as it’s an intrusion.  The defense, in the Florida case, is saying the same thing, however the state of Florida is saying no- that the dog used had a heightened sense of smell and that’s the dog’s ability and that is considered different.Source: www.judgehyman.com

Hyman wouldn’t be surprised if the U.S. Supreme Court upheld Florida’s decision by saying that using a dog requires a warrant and that going up to a house with a dog is the same thing as thermal imaging, which is used to detect grow lamps, which detect heat.

Cars are treated very differently constitutionally than houses because cars are very transient and the intrusion time is a lot less, says Hyman.  Generally speaking, he says, a warrant is not required to search a car.  He believes the evidence in the Florida case with regards to the car will be admissible and the house will continue to be excluded.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

Mediation as an Effective Way to End Workplace Wars

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Amy Lieberman, Esquire and leading national expert on corporate mediation, details her practical advice on how to settle workplace wars efficiently and cost-effectively through the process of mediation in her new book, Mediation Success: Get It Out, Get It Over, Get Back to Business.Source: mediationsuccess.com

Typically, people go through the court process, which can take years through trials and appeals and end up costing hundreds of thousands of dollars, says Lieberman.  With mediation, however, a conflict can usually be resolved in a day and the cost is generally a few thousand dollars and results in an outcome with which everyone involved is happy, she adds.

Lieberman notes that anything that's in litigation can be mediated.  She says that people who aren't going to mediation are when they think they can get out on a legal motion or they need some injunctive release.  Any other issue that you can go to court over you can do in mediation, including class action.

"There has to be an advantage to going through mediation and settling; some people call it a compromise, a give and take," and while one might be able to get more money if they sue, they're rolling the dice to see if they'll win and with mediation "there is certainty," Lieberman says.

Perfect for mediation, Lieberman says, is employment law because people spend the most time there and they're very emotionally connected to what goes on at work.  There can be a lot of private matters that you don't want to discuss publically, especially sexual harassment claims.  Quick resolution can give both parties the privacy they need but also allow "the employee to get on with their life and the employer to get on with their work."

According to Lieberman, about 90% of Fortune 500 companies use some form of mediation.  If there's a policy in effect, that policy may say that before a claim is filed with the court or EEOC, it needs to be mediated and the employer will usually go outside the company to get a mediator.  The employer will cover the costs and some employers will actually reimburse the employee anywhere from $2,000-$2,500 to get their own legal counsel.  If there's a policy in place, you can mediate really early on and if not, the EEOC will offer mediation at no charge for most claims.

Mandatory arbitration has been upheld by the U.S. Supreme Court.  As a matter of public policy, Lieberman says that the Supreme Court urges, promotes and supports alternative dispute resolution and for years, that was limited to the concept of arbitration.  The Supreme Court agrees that employees can be required to arbitrate all of their employment claims and they do look to make sure the agreement isn't overly one-sided and that in order for it to be fair, that the employer bear the cost.

Mediation is especially effective in divorce cases and Lieberman says that this is definitely the way to go, especially when there are children involved.  Mediation expedites the process and keeps it much more private.

Lieberman says that the field of mediation is maturing and getting more specialized so that you can select a mediator that  focuses on the area in which you're involved.  There is no requirement that a mediator has to be a lawyer, but if you're going to settle a legal dispute, most people won't consider anyone without a legal background.

Amy Lieberman serves as the Executive Director of Insight Mediation Group and Insight Employment Mediation LLC in Scottsdale, Arizona.  More information about her book, Mediation Success, can be found here.  Amy spoke with The Legal Broadcast Network, featuring on-demand, video content on legal matters.

Is it Sexual Harassment to be Called a "Bitch" in the Workplace?

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Can being called a "bitch" in the workplace be classified as sexual harassment?  Paul Mollica, employment lawyer for Outten and Golden, LLP, brings up a case filed against Cook County by a female employee as he talks with The Employment Law Channel.
A woman working for Cook County's Sherrif's Department was promoted to Deputy Director of the Day Reporting Center and for 3 years she, along with other female employees, was harangued by her new supervisor.  Repeatedly being called a "bitch" prompted her to complain and report it.  She was then accused of a work-rule violation that she had been involved in sexual conduct with one of the inmates and she was then suspended.Source: personal-injuries-law.com
Paul Mollica says this employee then filed a lawsuit against the county for both the harassment and the violation and she won her trial.  The jury found that she was sexually harrassed by her supervisor and she was awarded a substantial verdict against the county for violation of Federal Law Title 7, which protects employees against discrimination based on sex.
Mollica continues on to say that the judge, after the jury returned its verdict, entered what's known as a judgement as a matter of law, which is a finding by a judge that a plaintiff failed to make her case and disregarded the jury verdict.  The judge then made a judgement awarding the county.  However, the 7th Circuit reversed the judge's decision and said the jury was correct and re-instated at least part of the judgement.
Mollica says that some judges have held over time that the word "bitch" has become so watered down that they are not sexually discriminatory.  What the court said in this case was "we really need to view the word in the context in which it was intended," Mollica says and "is the person in this case being singled out because she's a woman?"
In this case, other evidence gave the use of the word more meaning, such as the word was used only with women and the specific false accusation that she had been involved with a male inmate.  It gave the word even more context that it was used to discriminate because of sex, Mollica notes.
Paul Mollica is counsel for Outten and Golden LLP, a law firm focusing on employment law. For more information on Paul Mollica, click here. Paul’s commentary was hosted by The Employment Law Channel, part of The Legal Broadcast Network.

Jared Loughner Pleads Guilty. What Should Arizona Do?

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Jared Loughner pleaded guilty in federal court, after he was found to be mentally competent and he will be sentenced to life in jail without the possibility of parole.  What remains to be seen is if Arizona will now seek the death penalty.

Eugene Hyman, retired Superior Court Judge in Santa Clara, California says that under the U.S. Constitution, there is nothing that prohibits another state on the same operative facts from prosecuting under its law.  The issue of whether Arizona can prosecute him on the death penalty is up to the Arizona Constitution, not the U.S. Constitution.  Hypothetically, if Loughner were to be found insane or incompetent to stand trial under the federal court, that would not prohibit the state on whether or not they would be required to find him insane, Hyman notes.

Hyman says that if he were representing Loughner, he would investigate what the state of Arizona was going to do first.  “It would be crazy to go ahead and take care of the federal case and leave him vulnerable with respect to the state case,” he says.  Hyman believes that the only reason Arizona would want to pursue the case is to seek the death penalty, considering Loughner is never getting out of jail.

In terms of who goes first, federal or state, in the federal constitution, it doesn’t matter but in the state constitution, it does make a difference, according to Hyman.  If Loughner is found incompetent in the federal case, that can be pursued in the state case.  A lot of evidence admitted in the federal case is going to be admitted in the state case and all of the testimony in the federal case, where people said he was competent, is going to come into play in the competency hearing with respect to Arizona, adds Hyman.

Hyman says there is a big distinction between the definitions of insanity and competency.  Insanity asks if a person was culpable at the time the offense was committed and if that person knew right from wrong.  Competency to stand trial asks without any consideration whether a person knew they were insane at the time of the offense and if that person is able to appreciate what is going on with the prosecution and if that person is able to assist their advocate in their defense.  Also, insanity is decided upon by a jury after being found guilty.  Incompetency, on the other hand, is for a judge to decide, not a jury, notes Hyman.Source: dailymail.co.uk

If a person is found to be incompetent, they can be sent away for many years to get rehabilitated and the prosecution can still pursue the case.  Hyman says that a lot of prosecutors fight incompetency because the strength of their case may not be the same down the line.  “Delay of a case always favors the defense, never the prosecution,” he says.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows.  For more information, visit www.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.