Florida’s Supreme Court ruled that non-lawyers who engage in various Medicaid planning activities are engaging in the unlicensed practice of law. The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers (Fla., No. SC14-211, Jan. 15, 2015).

The Elder Law Section of the Florida State Bar asked the Florida Bar Association to consider whether it constitutes the unlicensed practice of law for a non-lawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: (1) drafting of personal service contracts; (2) preparation and execution of qualified income trusts; or (3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits. After holding public hearings, the State Bar Association subsequently filed a proposed advisory opinion with the Supreme Court.

After considering the proposed advisory opinion and the briefs of interested parties, the Supreme Court of Florida directed the Florida Bar to revise the advisory opinion to exempt the activities of non-lawyers employed by the Florida Department of Children and Families who assisted the public in the Medicaid application process during the performance of their duties.  The Court then approved the resulting revised opinion.

The advisory opinion approved by the Court concluded that non-lawyers who performed any of the following activities were engaged in the unlicensed practice of law:

  • Drafting a Personal Service Contract.
  • Determining the need for, preparing, and executing a Qualified Income Trust, including gathering the information necessary to complete the trust.
  • Selling Personal Service Contracts or Qualified Income Trust forms or kits in the area of Medicaid planning.
  • Rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits.
  • Assessing the facts relevant to a client’s situation, applying those facts to the laws governing Medicaid, developing a plan to structure or spend the client’s assets in compliance with those laws, and drafting legal documents to execute the Medicaid plan, including advising an individual on which legal strategy or strategies under federal or Florida law are appropriate.

Florida’s Supreme Court ruled that non-lawyers who engage in various Medicaid planning activities are engaging in the unlicensed practice of law.

Although a non-lawyer’s preparation of the Medicaid application itself does not constitute the unlicensed practice of law as federal law authorizes non-lawyer assistance in the application process, see, 42 C.F.R. § 435.908, the Court ruled that the following activities would have to be determined on a case-by-case basis: restructuring assets, counseling customers on the best way to get Medicaid approval, and advertising as an “elder counselor.”

The advisory opinion also concluded that non-lawyer Medicaid planning companies that claim to have relationships with lawyers who draft the legal documents for the company’s clients were engaged in the unlicensed practice of law unless the client establishes an independent attorney-client relationship with the attorney, payment from the client is made directly to the attorney, and the initial determination that the particular legal document or Medicaid planning strategy is appropriate for the client given the client’s particular factual circumstances is the determination of the attorney.

For the court’s ruling and the advisory opinion it adopts, The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers (Fla., No. SC14-211, Jan. 15, 2015).

For additional information concerning Medicaid and public benefits planning, visit:
http://vanarellilaw.com/medicaid-public-benefits-planning/

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