Florida Elder Law & Estate Planning Blog


ALERT: Criminal penalties for non-lawyers engaging in Medicaid planning — and maybe, for those who hire them!

February 2, 2015
handcuff

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 for clients leading up to the application. The Supreme Court took up this matter because of the many Floridians victimized by those who claim to do Medicaid planning but who lack the required credentials. In some cases, the planning process failed and the families ended up paying huge nursing home out-of-pocket anyway. Others families have been blindsided by income tax liability they were not told they would face. In other cases, clients have even been charged with fraud because of mishandled planning and applications.

Illegal activities by a non-lawyer

Illegal activities include:

  • Giving legal advice regarding the implementation of Florida law to obtain Medicaid benefits.
  • Drafting personal services contracts.
  • Preparing and executing qualified income trusts

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 lawyers who prepare the necessary paperwork. But according to the Supreme Court ruling, they are still guilty of the unlicensed practice of law, unless the client separately retains and pays an attorney.

At this writing, the Supreme Court has yet to issue its final writing. However, the public should be wary. The unlicensed practice of law is a felony, punishable by five years in prison. Moreover, the person who make 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 may be subject to criminal penalties him/herself.

Hiring a non-lawyer to handle Medicaid planning, while perhaps less expensive at the front end, can be a costly mistake. Now, it 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 assistance.