Joining the states of Florida, Ohio, and Tennessee, the Supreme Court of New Jersey has found that Medicaid planning attorneys should handle Medicaid planning. Non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unauthorized practice of law. Florida’s Supreme Court decision last year, to the same effect, provides that a non-lawyer who engages in Medicaid planning is guilty of the unauthorized practice of law and is committing a criminal felony.
The NJ state Supreme Court received complaints that non-lawyers retained by families or nursing homes to assist with the Medicaid application process were providing erroneous or incomplete law-related advice. A state attorney ethics hotline received reports that non-lawyers charged “clients” large sums of money for what turned out to be faulty Medicaid-planning legal assistance. These actions caused the elderly victims to suffer significant financial losses.
The NJ state Supreme Court was asked for an opinion specifying what activities non-lawyers may engage in and what activities are the unauthorized practice of law. The Committee on the Unauthorized Practice of Law concluded that while non-lawyer Medicaid advisors may provide limited services, “[a]pplying the law to an individual’s specific circumstances generally is the ‘practice of law,’ and should be accomplished through Medicaid planning attorneys. A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual. But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like,” as those items constitute the practice of law and should be done by Medicaid planning attorneys.
For the Committee on the Unauthorized Practice of Law’s Opinion 53, “Non-Lawyer Medicaid Advisors (Including ‘Application Assistors’) and the Unauthorized Practice of Law,” , click here.
The Medicaid laws are very complex, and deal with a number of overlapping legal doctrines. When you need assistance with Medicaid planning, including the preparation of spend down plans, trusts, personal care contracts, Medicaid asset protection trusts, or other options that comply with the Medicaid laws, you should seek out experienced elder law or Medicaid planning attorneys for that assistance. Otherwise, you and your family may also experience “significant financial losses.”