The Committee on the Unauthorized Practice of Law, appointed by the Supreme Court of New Jersey, recently issued Opinion 53 in which the Court considered weather non-lawyers who assisted applicants and beneficiaries in applying for Medicaid benefits were engaged in the unauthorized practice of law. The Court identified the non-lawyers providing Medicaid assistance as “Medicaid Advisors” and “Application Assistors.”

The Court recognized that federal law permits non-lawyers to assist Medicaid applicants with certain tasks necessary to obtain and maintain eligibility for public benefits. For example, the Court found that non-lawyers may provide information on public benefit programs and coverage options, assist in preparing and filing Medicaid applications and renewals, review documents to determine an applicant’s resources for Medicaid purposes, assist with communication between the agency and the applicant, and attend hearings with the applicant or on behalf of the applicant.

However, while non-lawyers may provide the limited Medicaid services outlined above, the Court found that, when providing advice in matters that require the professional judgment of a lawyer, non-lawyers are engaged in the unauthorized practice of law. For example, the Court explained that only a lawyer may provide legal advice on issues such as strategies for Medicaid eligibility, including the effect that various provisions of wills and powers of attorney may have on eligibility; on the need for guardianships; on the authority to transfer or sell assets; on nursing home laws; on transfers of property; on the impact of marriage and divorce on Medicaid eligibility; on spending down resources; on the tax implications of asset transfers; on the creation of trusts or service contracts; and on estate administration and issues involving the elective share. Specifically, the Court characterized the difference between Medicaid tasks which non-lawyers can perform and those which require lawyer involvement as follows:

Applying the law to an individual’s specific circumstances generally is the “practice of law.” A [non-lawyer] may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual. But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like.

As a result of the necessity of inquiring into the type of services provided by non-lawyers assisting in obtaining Medicaid eligibility, the Court concluded that the question of whether non-lawyer involvement in Medicaid planning constitutes the unauthorized practice of law must be determined on a case-by-case basis.

Opinion 53 by the Committee on the Unauthorized Practice of Law Appointed by the Supreme Court of New Jersey is annexed here – New Jersey UPL Opinion 53 Medicaid Advisors 5.16.16