After years of investigation, receiving hundreds of pages of written testimony and taking oral testimony at a public hearing, this week, the Florida Bar Standing Committee on the Unlicensed Practice of Law (UPL) issued its Proposed Advisory Opinion on what constitutes UPL during what is called “Medicaid Planning”. Medicaid Planning is a process by which and individual or couple reviews their assets and income to determine if they are eligible for Medicaid long term care benefits and if not, how they might become eligible, if that is a reasonable decision in their circumstances.
The thorough, 357 page opinion determines that non-attorneys giving advice on strategies for obtaining Medicaid eligibility, such as creating Qualified Income Trusts (QIT) and Personal Service Contracts (PSC), or how to reverse inappropriate transactions constitutes UPL, a third degree felony in Florida. In addition, it prohibits non-attorneys from selling QIT or PSC form kits. The Bar will file the proposed opinion with the Supreme Court of Florida in January, seeking a permanent ruling.
The Opinion is good news for senior citizens and their families. It discourages untrained and unlicensed predators from preying on our most vulnerable citizens. QITs and PSCs are legal instruments with legal consequences to an individual’s financial status. While they are used to obtain Medicaid eligibility, they require the education and experience of a qualified elder law attorney to properly draft and use. When handled by a non-attorney, mistakes are commonly made that can cause the applicant to be denied Medicaid benefits. That costs a lot more money, time, and stress for the senior citizen and their family.
Many unlicensed planners claim they work with attorneys who “review” the documents. However the senior citizen never meets the mysterious attorney. According to the Opinion, that is also UPL. The opinion would require the attorney drafting legal documents and providing legal advice regarding Medicaid to establish a relationship with the client and work only for the client, not the non-attorney who has instigated the Medicaid planning.
Do you have a loved one in your family applying for Medicaid? If so, buyer beware. Make sure you contact a qualified elder law attorney for the proper Medicaid application process and peace of mind.