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 Florida.
