Almost two years ago on January 15, 2015, the Supreme Court of Florida rules that
non-attorneys are prohibited from engaging in certain activities related to Medicaid
planning, which constitute the Unauthorized Practice of Law (UPL). UPL is a third
degree felony in Florida. A third degree felony is punishable by prison of up to 5
years and a fine of no more than $5000.00.
UPL continues to be a growing problem in the arena of Medicaid planning. I see
more and more clients coming to me after being told by the nursing home that
they MUST use the company the nursing home recommended for Medicaid
planning, or after consulting with these companies and failing to qualify for Medicaid
because the person hired did not know what they were doing, which ends up with
the individual continuing to privately pay for the nursing home at a cost of $7,500-
$10,000 per month.
The opinion, which can be found here http://www.floridasupremecourt.org/decisions/2015/sc14-211.pdf , made it
UPL for a non-attorney to (1) draft a personal services contract; (2) prepare and
execute a qualified income trust; and (3) render legal advice regarding the
implementation of Florida law to obtain Medicaid benefits.
The Court found that the opinion was necessary to prevent the public from harm
caused by individuals who are not subject to any type of regulation and who do not
have the education necessary to competently advise people. In the Opinion, some
of the examples of non-attorney Medicaid planners were a disbarred attorney, an
individual who lost his securities license for fraudulent practice, and life insurance
agent convicted of two felonies who lost his insurance license.
Many times, these non-attorney Medicaid planners will attempt to sell financial
products to the person who is attempting to qualify for Medicaid that can have
disastrous financial consequences, such as a deferred annuity, which has no place in
Medicaid planning. Annuity sales result in large commissions for the person selling
the annuity. Annuities have surrender periods of many years, which will result in
penalties of up to 15% for early withdrawal (cashing in) of the annuity prior to the end
of the surrender period. A deferred annuity will ALWAYS be deemed a countable
resource by Medicaid because of its cash surrender value and will disqualify a
person from qualifying from Medicaid.
Additionally, some nursing homes try to establish an exclusive relationship with non-
attorney Medicaid planners and insist on the nursing home resident/Medicaid
applicant using their exclusive service provider. Be wary of these referrals! Most
likely there is some self-interest that is driving the referral such as a kickback from
the non-attorney Medicaid planner to the person making the referral. You should
never be forced to use the non-attorney Medicaid planner recommended.
Medicaid planning is a highly technical and complex legal area. It involves the
interplay of federal and state statutes, federal administrative rules, state
administrative code, keeping abreast of Fair Hearing decisions, updates to the
Florida ESS Manual and legislative and administrative changes which affect the
planning strategies, and a thorough knowledge of tax law and how planning
strategies can result in tax liability.
It personally took me co-counseling on multiple cases with other, more experienced
elder law attorneys, attending numerous continuing education seminars over
several years, developing a network of other competent elder lawyers, and slowly
wading into the practice area by myself with the ability to ask my network of other
elder lawyers if I encountered something new, before I had a comfort level advising
clients on my own.
Learning is a lifetime process that never ends. To this day, I go to several multi-day
continuing education seminars each year dedicated to Medicaid planning and elder
law issues and participate in two to three conference calls per week on Medicaid
planning and other elder law issues with the best elder law attorneys in the State of
THE CONCLUSION I HOPE YOU DRAW IS THIS:
1. Stay away from non-attorney Medicaid planners as they do not have the skill
or expertise to handle a case properly and they are not subject to any type of
regulatory authority. This is a constantly evolving area of law.
2. Don’t feel compelled to use someone the nursing home recommends to you;
go out and do your own due diligence and research and hire the person you
feel most comfortable with. Remember, you want to have an ongoing
relationship with this person, so you should like them and you should feel
confident in their abilities.
3. If you feel that you’ve been harmed by a non-attorney Medicaid planner, then
file a UPL complaint with the Florida Bar.