Medicaid Planning Activities of Nonlawyers

The Florida Supreme Court has recently issued an advisory opinion concluding that, “in order to protect the public from harm” … “it constitutes the unlicensed practice of law for a nonlawyer to render legal advice regarding the implementation of Florida law to obtain Medicaid Benefits.”  See the Florida Bar re: Advisory Opinion-Medicaid Planning Activities by Nonlawyers, 2015 WL 174994 (2015). 

 ***If you have used one of these services, you may be entitled to damages***

  Nonlawyer advertising:

The Court has also determined “that to the extent that a nonlawyer advertises that he or she is a Medicaid expert or specialist or in such a fashion as to induce reliance on the nonlawyer to assist the individual with their Medicaid planning, the nonlawyer is engaged in the unlicensed practice of law.”

 Harm & the Potential for Harm:

PUBLIC HARM: According to the Court, “[t]he potential for public harm is even greater when the nonlawyers put themselves in a position of reliance and advising the customer as to the proper course of action to take.”

PERSONAL HARM: “Testimony described the type of harm caused by nonlawyer Medicaid planners which includes:

  • denial of Medicaid eligibility
  • exploitation
  • catastrophic or severe tax liability
  • and the purchase of inappropriate financial products threatening or destroying clients’ life savings.”

Witness Testimony:

  •  VETERANS BENEFITS: In one case, “a nonlawyer improperly executed an irrevocable trust form to qualify a client for veterans benefits.  This strategy failed to allow the client to qualify for Medicaid benefits and caused a lengthy disqualification of Medicaid benefits.”

 

  •  NURSING HOME: In another case, there was “testimony about a nonlawyer improperly preparing a Qualified Income Trust resulting in Medicaid benefits being denied, which cost the client several months at the nursing home.”

 

  • MEDICAID FRAUD: “Another witness testified about a client who engaged a nonlawyer Medicaid planning service and was advised by the service that a personal service contract was needed” and a contract was prepared.  “The family is open to charges for Medicaid fraud and the client is no longer eligible for Medicaid benefits.

Court’s Conclusion:

The Court has concluded “that it constitutes the unlicensed practice of law for a nonlawyer to render legal advice regarding the implementation of Florida law to obtain Medicaid benefits.  This includes advising an individual on the appropriate legal strategies available for spending down and restructuring assets and the need for a personal service contract or Qualified Income Trust.”

***If you have used one of these services, you may be entitled to damages***

Individuals have standing to initiate a civil action for recovery of damages caused by the unlicensed practice of law under certain instances.  The Florida Supreme Court in Goldberg v. Merrill Lynch Credit Corp., 35 (So. 3d) 905, held, “if  the actions complained of have been ruled on by this Court, then a plaintiff may be able to state a cause of action with proper pleading, even though the defendant accused of the unauthorized practice of law has not been subject to a Florida Bar proceeding.

Shane K. Warner, Esq. is an Elder Law Attorney who assists clients in the Tampa, Clearwater, St. Petersburg area with Medicaid Planning, Wills & Trusts, Estate Planning and Probate.