Apr 16, 2015

Urgent Update: Florida Supreme Court final opinion criminalizes Medicaid planning by non-lawyers

Thinking about getting Medicaid planning advice from someone other than an attorney? Thinking of referring someone to a non-attorney? 

Better think again. Besides getting bad advice, you also may be aiding and abetting a crime.

As I reported several weeks ago, the Florida Supreme Court on January 15 issued an advisory opinion aimed at protecting the public from non-lawyers who represent that they can do Florida Medicaid planning. The court's opinion is a response to Florida cases in which non-lawyers (1) failed to help clients achieve eligibility; (2) exposed clients to charges of fraud; and/or (3) failed to inform clients of the negative tax consequences that would result from such plans. You can read the court's opinion here.

The advisory opinion became final on April 10. "The opinion has full force and effect of an order of the court" and deems any of the following actions by a non-lawyer to constitute the unlicensed practice of law: 

  • Giving legal advice regarding the implementation of Florida law to obtain Medicaid benefits.
  • Drafting personal services contracts.
  • Preparing and executing qualified income trusts.
The unlicensed practice of law is a felony punishable by five years in prison. It follows that anyone who retains, or refers to, a non-lawyer for these activities may be considered to be aiding and abetting a crime, and therefore subject to criminal penalties himself/herself. 

Merely assisting someone with the Medicaid application is not a criminal act. The crime is defined as a non-lawyer giving planning advice leading up to the actual application.

What if a non-lawyer offering Medicaid planning services claims to have a working relationship with a licensed attorney who will handle the clients' legal issues and paperwork? It doesn't matter, the Florida Supreme Court concludes. Unless the client himself/herself hires and retains the attorney, that arrangement is still the unlicensed practice of law. 

Hiring a non-lawyer to handle Medicaid planning, while perhaps less expensive at the front end, can be a costly mistake. Now, it may also be considered a criminal activity.  It is always prudent to seek advice from a Florida Bar Certified Elder Law Specialist. Contact our office for assistance.

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