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FL Supreme Ct: Non-lawyer Medicaid planning a felony

4-10-2015 - The Florida Supreme Court on April 10 finalized its advisory opinion that non-lawyers who provide Medicaid planning advice are practicing law without a license, a felony punishable by up to five years in prison. Criminalization of this activity affects not just non-lawyers, but also the individuals who refer others to them, and those who retain them.

The court's action arose in response to Florida cases in which non-lawyers (1) failed to help clients achieve eligibility; (2) exposed clients to charges of fraud; and/or (3) failed to inform clients of the negative tax consequences that would result. You can read the court's opinion here.

The opinion "has full force and effect of an order of the court" and deems any of the following actions by a non-lawyer to constitute the unlicensed practice of law: 

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

Drafting personal services contracts.

Preparing and executing qualified income trusts.

The unlicensed practice of law is a felony and punishable by up to five years in prison.

It follows that anyone who retains a non-lawyer, or refers to, a non-lawyer for these activities may be considered aiding and abetting a crime, and therefore subject to criminal penalties him/herself. 

A non-lawyer who offers planning advice leading up to the Medicaid application is committing a felony. However, merely assisting someone with the application per se is not a criminal act.

What if a non-lawyer offering Medicaid planning services claims to have a working relationship with a licensed attorney who will handle the client's legal issues and paperwork? The Florida Supreme Court still considers that arrangement to be the unlicensed practice of law, unless the client himself/herself hires and retains the attorney.

Hiring a non-attorney for Medicaid planning, while perhaps less expensive at the front end, can be a costly mistake. Now, it may also be considered a crime. It is always prudent to seek advice from a Florida Bar Certified Elder Law Specialist. Contact our office for assistance.

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