Personal Injury Trusts are only available to those who have sustained personal injuries as a result of someone else’s negligence and subsequently have made a claim for damages for those injuries. If you have made a claim, a Trust can be created at any time, during or after a claim is made.
However, it is important to note, if you receive damages, and spend any of these, whether that is at the conclusion of your claim, or during your claim because you have received interim payments of damages to assist with various things such as lost earnings or brain injury rehabilitation, it is important to consider if a PI Trust would be relevant to contain these damages within 52 weeks of initially receiving funds ideally.
Brain injury claim compensation and benefits
Ultimately if you or someone in your family has sustained a brain injury, you may already be receiving financial benefits from the Dept of Works and Pensions, whether this is Employment Support, Personal Independence Payments to assist with care or mobility, housing benefits or any number of other benefits. Some of these benefits are means tested, so the DWP will ask you to declare how much you have in assets to determine if you qualify for certain benefits. If you then receive an interim payment of damages or damages at the end of your claim, this could mean that your entitlement to those benefits change.
If this is something you consider will affect you, it is really important that you get some advice about this, and your options to ensure you get the right solution for your own personal circumstances.
The most common means tested benefits you are likely to be claiming as a result of sustaining a brain injury, are benefits such as housing benefit, council tax benefit, income based employment support allowance, income support and pensions credit.
Personal Injury Trusts and benefits
A Personal Injury Trust can be set up for your damages to be paid into, essentially the damages in your Trust and managed via a Trust bank account can only be accessed by Trustees, one of these may be you, and usually you would nominate one other close personal friend, or relative to be another Trustee on the account. If you set up a Trust, it follows that the damages are then essentially “ring fenced” from being declared to the Department of Work and Pensions and will not affect your eligibility to still claim those benefits you were on before you received any damages. This will then allow you to use your damages to pay for the various items you claimed them for such as housing adaptations, or rehabilitation to name a few without affecting your benefit entitlement.
Another important consideration is whether anyone else who shares and lives in the same household receives any means tested benefits as your receipt of damages could also affect their entitlement.
Is a Personal Injury Trust right for me?
Ultimately it is your choice whether to have a personal injury trust or not, on the basis you have the capacity to make that decision. If, for example, you do not receive any state benefits, you may not consider it is the right option for you and wish to retain sole control of your damages rather than consulting with another Trustee. However, you may need to claim state benefits in the future, even years from now, which may mean that setting up a Trust now is a good idea. This also applies to any local authority care you may require in older age.
Each person’s circumstances are different and therefore it is important that you seek legal advice about whether a trust would be the right option for you when claiming damages. Your solicitor should be able to advise you of all the options available.
Produced by Rachel Aram, Partner at Irwin Mitchell Solicitors
Rachel specialises in dealing with adult brain injury and spinal cord injury cases. She is dedicated to ensuring clients who receive life changing injuries receive appropriate rehabilitation promote independence wherever possible. Rachel is based at Irwin Mitchell’s Sheffield office where she manages one of the serious injury teams.
Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.
How can Brain Injury Group help?
Brain Injury Group is a network of approved personal injury solicitors with brain injury expertise. Moreover, our member firms have the complex injury experience to get the best possible rehabilitation and compensation for brain injuries.
Brain injury rehabilitation is important; to us, to our members, to you and towards getting the best outcome. We can help get you that best outcome. Get in touch to find out more from our brain injury experts.
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