If you have ever searched online for help with Medicaid planning, you have probably encountered companies and consultants advertising their services as Medicaid “experts” or “specialists” — none of whom are attorneys. In Florida, what those companies do is illegal. And it took nearly a decade of advocacy to make it so.
The Florida Supreme Court settled the question definitively in 2015: non-attorneys who provide legal advice, prepare legal documents, or guide families through Medicaid eligibility strategies are engaging in the Unlicensed Practice of Law (UPL) — a third-degree felony in Florida. That ruling is still in full force today, and every Florida family navigating Medicaid planning for a loved one should understand what it means.
Why This Ruling Matters
Medicaid planning is the process of reviewing a person’s income and assets to determine whether they qualify for Medicaid long-term care benefits — and, if not, what legal strategies may help them become eligible. It sounds straightforward. It is not.
Qualifying for Florida Medicaid long-term care involves legal instruments with serious, lasting consequences. A Qualified Income Trust (QIT), for example, is an irrevocable trust. A Personal Service Contract (PSC) is a legal agreement that affects an applicant’s countable assets. If either is drafted incorrectly, the result can be a denial of Medicaid benefits — leaving a family to absorb thousands of dollars in nursing home costs while scrambling to fix avoidable mistakes.
For years, non-attorney companies operated freely in this space, charging fees to help seniors qualify for Medicaid while providing what amounted to legal advice and drafting legal documents. Some claimed to work alongside attorneys — but in practice, many clients never met an attorney at all. The harm caused was real and well-documented.
How the Ruling Came About
The advisory opinion that became the 2015 Supreme Court ruling was the result of years of work by Florida’s elder law attorneys, including members of the Elder Law Section’s UPL Subcommittee. Twyla Sketchley was among the long-term committee members who contributed to that effort — working to document the harm caused by non-attorney Medicaid planners and advocating for a formal opinion that would protect Florida seniors.
Here is the timeline of how it unfolded:
| Year | Milestone |
|---|---|
| 2008 | The Florida Bar first considers a request for direction on non-attorney Medicaid planning activities — but the matter is tabled. |
| 2010-13 | The Elder Law Section’s UPL Subcommittee documents growing harm from non-attorney planners and submits a second, more formal request to the Standing Committee on UPL. |
| 2013 | The Florida Bar UPL Committee issues a 357-page Proposed Advisory Opinion concluding that non-attorney Medicaid planning activities constitute UPL. The opinion is submitted to the Florida Supreme Court. |
| Jan. 2015 | The Florida Supreme Court approves a revised advisory opinion, giving it the force and effect of a court order. Non-attorney Medicaid planning is officially UPL in Florida. |
| Apr. 2015 | The advisory opinion becomes final. |
| Oct. 2015 | The U.S. Supreme Court denies a petition for certiorari challenging the Florida ruling. The opinion stands. |
What the Ruling Actually Says
The Florida Supreme Court’s advisory opinion (Case No. SC14-211) is clear and still governs today. Under the ruling, a non-attorney may not:
- Draft personal service contracts (PSCs) — legal documents that help a Medicaid applicant reduce their countable assets
- Determine the need for, prepare, or execute a Qualified Income Trust (QIT)
- Render legal advice regarding the implementation of Florida law to obtain Medicaid benefits — including advising on which strategies are appropriate for a client’s specific circumstances
- Sell personal service contract or QIT forms or kits
Importantly, the ruling also addresses the “attorney in the background” arrangement that many non-attorney companies used to appear compliant. A company claiming to have an attorney review or draft documents is still engaged in UPL unless all three of the following conditions are met:
- The client establishes a direct, independent attorney-client relationship with the attorney
- Payment from the client goes directly to the attorney
- The attorney — not the non-attorney company — makes the initial determination of which legal strategy or document is appropriate for the client’s circumstances
What Non-Attorneys May Still Do
The ruling specifically carves out one activity that is not UPL: preparing the actual Medicaid application. Federal law authorizes non-lawyers to assist with application preparation. DCF staff may also discuss Medicaid trusts and eligibility policies with applicants as part of their official duties. Beyond that, Medicaid planning strategies — and the legal documents used to implement them — require a qualified elder law attorney.
Why Families Still Need to Be Careful
A decade after the Florida Supreme Court’s ruling, non-attorney Medicaid planning companies still exist and still market their services to Florida families. Some operate in legal grey areas; others are openly violating the advisory opinion. In either case, the risk to the family is the same: a QIT or PSC that is improperly structured can result in Medicaid denial, tax consequences, or the loss of eligibility the family was trying to protect.
If a company or individual who is not a licensed Florida attorney is offering to help your family qualify for Medicaid — and offering to draft legal documents or advise on legal strategies as part of that service — that is a warning sign. You should ask directly: Are you a licensed Florida attorney? If the answer is no, walk away.
Genuine Medicaid planning requires someone who knows not only the Medicaid rules but also how those rules interact with Florida probate law, estate planning, trust law, and guardianship. That combination of knowledge is what a board-certified elder law attorney brings — and what a non-attorney cannot legally provide.
About This Post
This post reflects The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers, Case No. SC14-211 (Fla. Jan. 15, 2015), which carries the force and effect of a Florida Supreme Court order. Timeline sourced from Florida Bar News and NAELA News. This post is intended as general legal information only and does not constitute legal advice.