Health Care Surrogate

Senior Advisors and the Unlicensed Practice of Law

As the population ages, more and more people are specializing in the senior market.  Home care agencies, real estate agents, insurance salespeople and more are calling themselves “Experts” in senior planning.  We encourage people to deal with people who have expertise in their respective fields.  Whenever someone claims expertise in a field, one should inquire how that expertise was obtained.  Sometimes “certifications” can be obtained in only a few hours.  We are finding that many of these “experts” are giving advice about planning for government benefits and/or legal documents.  The Florida Supreme Court addressed this issue in an Advisory Opinion. http://www.floridasupremecourt.org/decisions/2015/sc14-211.pdf.

The opinion defines the “practice of law” as it relates to Medicaid Planning. The unlicensed practice of law is considered a crime.  The opinion specifies three specific areas that are the “practice of law.”  These areas are:

  • The drafting of a personal services contract
  • The preparation and execution of Qualified Income Trusts
  • Rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits

The opinion expressly provides that assisting a person with filling out a Medicaid application is NOT the unauthorized practice of law.  The rationale for the opinion is sound.  There are both legal and tax consequences of the drafting of personal services contracts.  The determination of countable income and the implementation of Qualified Income Trusts are complex issues that if not properly completed, have disastrous consequences to the applicant. According to the opinion, applying Florida law to obtain Medicaid benefits includes: (1) the assessment of all facts relevant to a client’s situation, including personal, financial, familial, and historical; (2) application of those particular facts to the laws governing Medicaid;(3) developing a plan to structure or spend those assets in compliance with those laws or planning to reverse actions already taken to correct potentially unauthorized activity to minimize negative legal consequences; (4) drafting legal documents to execute the plan; and (5) assisting the client in correctly executing a particular plan.

Consumers are harmed when unqualified people advise without a complete understanding of these legal tools.

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