The Elder Law Attorney’s Role in Medicaid Planning
Do you need an elder law attorney for even “simple” Medicaid planning?
The social worker at your parent’s nursing home assigned to assist you with the preparation of a Medicaid application for your mother knows a lot about the program, but maybe not that one particular rule that applies in your case or the newest changes in the law, which can make all the difference in whether your mother’s application will be approved. In addition, by the time you’re applying for Medicaid, you may have missed out on significant planning opportunities, that could have helped your family preserve valuable assets.
The best option is to immediately consult with a qualified and experienced elder law attorney who can advise you on your family’s entire situation, at the first thought that a nursing home might be necessary. At the very least, the price of the consultation should purchase some peace of mind that things are being accomplished appropriately and in your family’s best interest. What you learn from such a consultation with an experienced elder law attorney can mean significant financial savings or better care for you or your loved one. Proper Medicaid planning may involve the use of trusts, transfers of assets, purchase of annuities or increased income and resource allowances for the healthy parent who is living at home.
The Medicaid laws and regulations collectively create a maze in which the non-lawyer can easily run into dead ends. The experienced elder law attorney is aware of recent changes in the law, the results of the latest “fair hearings” (which are written decisions by administrative judges ruling on appeals of Medicaid denials of benefits made by the Department of Children and Families), and information gathered from other elder law attorneys who involved in dealing with Medicaid matters on a daily basis.
Medicaid Planning Constitutes the Practice of Law and Should Be Undertaken by Elder Law Attorneys
Furthermore, the Florida Supreme Court has ruled in The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers, SC14-211, January 15, 2015, that Medicaid planning, because of the requirement to understand and implement the statutes and regulations, constitutes the practice of law. In that opinion, the Florida Supreme Court said:
“. . . the testimony revealed that non-lawyer Medicaid planners are essentially unregulated, as there are no licensing, education, or advertising requirements. . . .
Testimony described the type of harm caused by nonlawyer Medicaid planners which includes denial of Medicaid eligibility, exploitation, catastrophic or severe tax liability, and the purchase of inappropriate financial products threatening or destroying clients’ life savings. The potential for public harm is even greater when the nonlawyers put themselves in a position of reliance and advising the customer as to the proper course of action to take. In order to protect the public from harm, it is the opinion of the Standing Committee that the activities described herein constitute the unlicensed practice of law and should not be authorized.”
Consequently, non-lawyers who engage in Medicaid planning are involved in the unlicensed practice of law, which in Florida is a felony.
If you are going to consult with an experienced elder law attorney, the sooner the better. If you wait, it may be too late to take some steps available to preserve substantial assets for the family. Whether your initial consultation is in advance of the actual need for Medicaid benefits to pay for nursing home care, or on a crisis basis because your spouse or elderly parent has just been determined to need Medicaid, we can help. To schedule a consultation, just call us at (904) 448-1969.