A Question & Answer session with a nationally recognized leader in disability planning legal issues.
Certified Elder Law Attorney and Super Lawyer Julian E. Gray is no stranger to helping disabled clients navigate life-long planning issues and achieving quality of life and financial stability. For over 25 years, Julian has provided counsel to thousands of families facing significant challenges in adjusting to the need for ongoing long term medical care, whether at home or in a medical facility. In the beginning, most clients approached him with issues relating to long term care in their elder years, frequently trying to achieve quality long term medical care without losing their life savings paying for such care. This skill set quickly translated into helping disabled clients of all ages, especially those resulting from a catastrophic injury.
Q: How did you get involved representing personal injury clients and assisting their lawyers?
A: Several years ago, I was working on a case and a well-recognized plaintiff lawyer in the Pittsburgh area said to me, “You know all about this Medicaid and SSI stuff. Why don’t you help our injured clients adjust to their new circumstances and plan for the future?” Well, it’s more than just maintaining government benefits. But I thought, sure, that’s what we’re doing already but most people only knew us for long term care planning for the elderly. And thus, the light-bulb went on and we started helping younger people with catastrophic injuries. It’s a similar skill set as an older person facing a long-term illness like dementia. There’s a medical need that will not be resolved. The client will never work again to increase his income or assets and the costs of such care could exhaust his life savings.
Q: When do you get involved with a liability case?
A: Ideally, we want to start working on the case shortly after the date of loss. The plaintiff attorney is working on establishing liability theories, identifying defendants and determining damages. Meanwhile, the client is trying to adjust to a dramatically different lifestyle. The client is worried about how she will receive the care she needs long term, who will pay for it and what will happen after the dust settles and her life goes on. The lead time for even routine planning options can be several weeks or months. For example, one common planning option is to place some portion of the settlement into a Special Needs Trust. This trust is part of a larger comprehensive estate plan. There is a learning curve for the client, who may not be sophisticated in such matters. There is also a trust factor. The client and family have just endured a catastrophic medical event and want to know how this trust is going to work, when money can be distributed and get a comfort level with the new trustee. Coordinating meeting schedules, drafting and reviewing the trust, making revisions and explaining how it works can take several weeks. Also, these trusts must be submitted to the state Medicaid agency legal counsel for approval, which can take more time. On the more sophisticated side, Liability Medicare Set Asides are just on the horizon, and that analysis can require a month or more to facilitate properly because up to date medical history must be provided by the plaintiff or her attorney to the LMSA consultant, which then must be analyzed by us to determine if the LMSA is necessary, how it will be funded and administered and the terms under which the money can be released or if the client will choose private insurance in lieu of Medicare in the future. Some of these decisions, if made in haste, can have serious negative long-term effects for the client, and possibly her plaintiff liability attorney.
Q: What significant improvements have you been able to make in the lives of the clients and their liability attorneys through comprehensive planning?
A: Traditionally, plaintiff lawyers are so busy building the case to maximize the financial result that planning for the rest of the client’s life is put on the back burner until the last minute. Too often we see cases where a client settles at mediation and is given some standard options such as a structured settlement or payback special needs trust without any comprehensive investigation into the client’s real long-term needs and goals. On most of our cases, we spend a year or more prior to mediation or trial working with the client, providing them immediate help in their current care needs through our in-house social worker and other outside professionals.
Meanwhile, we exhaustively investigate the client’s medical and living needs for the future, available government benefits, state and federal tax planning and budgetary needs. As a result, the client is prepared to make important decisions when the case settles that will be custom designed for the client’s long-term goals. The plaintiff attorney relies upon us to answer questions pending trial and takes the pressure off the plaintiff attorney to step outside his comfort zone on these peripheral planning issues that he may or may not be qualified to answer anyway.
Q: How does this practice equate to winning the lottery?
A: I’ve had the opportunity to represent several large lottery winners over the years and the financial ramifications are similar to a catastrophically injured client who receives a settlement or verdict. In handling the former situations, we undertook a comprehensive analysis to design a long-term plan that fit with the client’s needs and goals before making any important decisions. The injury case requires even greater inspection of circumstances due to the long-term medical needs and inability to work in the future. I’ve met people who’ve made life changing decisions at mediation without proper guidance who regret those decisions years later once they became aware of their options and by then, it’s usually too late. In the lottery context, I just can’t imagine telling that client when they present the winning ticket to the state lottery agency being told that they have to make a decision that day on how they will plan for the rest of their life - and they can’t change their minds later.
Q. How do you help plaintiff attorneys to get paid faster?
A. One of our goals is to keep the case moving. We provide ongoing answers to questions that may be outside the scope of the traditional plaintiff lawyer’s expertise. There are questions about health insurance and Medicaid coverage, Social Security eligibility issues, purchasing a home, lien resolution, Medicare set asides, structured settlements and the list goes on. By planning in advance of settlement or trial, the post settlement or verdict delays are minimized because we have already planned through the options and made decisions on how the money will be distributed. The value increases since we typically charge our fee on a contingent basis so that neither the client nor the plaintiff lawyer have to come out of pocket if the case is not successfully resolved.
Q. What would you say to plaintiff lawyers who have not used your services before?
A. They’ve got nothing to lose, but the lawyer and client can count on having another experienced attorney on the team as they proceed to resolve the case. It’s like having a “back office” planning department for the plaintiff lawyer to delegate issues that arise throughout the case that are outside the scope of the liability lawsuit.
* Certified as an Elder Law Attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court.
