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FL Supreme Ct: Non-lawyer Medicaid planning costly, maybe criminal

1-15-2015 - The Florida Supreme Court on January 15, 2015 ruled that a non-lawyer is guilty of the unlicensed practice of law if the individual engages in Medicaid planning activities leading up to the application. Such activities include:

  • Giving legal advice regarding the implementation of Florida law to obtain Medicaid benefits.

  • Drafting personal services contracts.

You can read the Supreme Court's advisory opinion here

Many non-lawyers who claim to do Medicaid planning purport to have a relationship with lawyer(s) who prepare the necessary paperwork. But according to the Supreme Court, a non-lawyer is still guilty of the unlicensed practice of law unless the client separately retains and pays an attorney. The unlicensed practice of law is a felony and is punishable by five years in prison.

The public should be wary. The person who makes a referral to a non-lawyer - as well as the person who hires a non-lawyer - may be considered to be aiding and abetting the crime, and therefore could be subject to criminal penalties him/herself.

The Supreme Court examined numerous instances in which Floridians have been victimized by those who claim to do Medicaid planning, but who lack the required credentials and knowledge. In some of these cases, the planning process failed and the families ended up paying the nursing home out-of-pocket anyway. Other people were blindsided by income tax liability no one told them they would face. In other instances, clients who retained non-lawyers were charged with fraud because of mishandled planning and applications.

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

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