Florida’s Supreme Court has ruled that non-lawyers who engage in various Medicaid planning activities are engaging in the unlicensed practice of law. The court’s ruling embraces a proposed advisory opinion of the Florida Bar that resulted from a petition by the Bar’s Elder Law Section. The Florida Bar Re: Advisory Opinion -- Medicaid Planning Activities by Nonlawyers (Fla., No. SC14-211, Jan. 15, 2015).
The Elder Law Section had asked the Bar to consider whether it constitutes the unlicensed practice of law for a non-lawyer to engage in three Medicaid planning activities leading up to the Medicaid application: the drafting of personal service contracts; the preparation and execution of qualified income trusts; or the rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits.
After considering the resulting proposed opinion and the briefs of interested parties, the Supreme Court of Florida directed the Florida Bar’s Standing Committee on the Unlicensed Practice of Law to revise its opinion to exempt the activities of non-lawyer staff of the Florida Department of Children and Families in relation to their duty to assist the public in the Medicaid application process. The court then approved the resulting revised opinion in total.
That advisory opinion concludes that non-lawyers engaging in any of the following activities constitutes the unlicensed practice of law:
- drafting a personal service contract
- determining the need for, preparing, and executing a Qualified Income Trust, including gathering the information necessary to complete the trust
- selling personal service or Qualified Income Trust forms or kits in the area of Medicaid planning
- rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits, including advising an individual on the appropriate legal strategies available for spending down and restructuring assets and the need for a personal service contract or Qualified Income Trust
A non-lawyer’s preparation of the Medicaid application itself would not constitute the unlicensed practice of law.
The advisory opinion also takes aim at non-lawyer Medicaid planning companies that claim to have relationships with lawyers who draft the legal documents for the company’s clients. The opinion concludes that that such a company would be engaged in the unlicensed practice of law unless the client establishes an independent attorney-client relationship with the attorney, payment from the client is directly to the attorney, and the initial determination that the particular legal document or Medicaid planning strategy is appropriate for the client given the client’s particular factual circumstances is the determination of the attorney.
The opinion notes that due to a lack of regulation, “non-lawyer Medicaid planners include a disbarred Florida lawyer, an individual who lost his securities license for fraudulent practice, and a life insurance agent who was convicted of two felonies and lost his insurance license.”
According to the Orlando Sentinal, at least two non-lawyers objected to the committee's conclusions. For example, William B. Burns, who holds insurance and securities licenses and part of whose business involves providing Medicaid planning services, filed a brief arguing that professionals with insurance and securities licenses are subject to regulation and that the Bar committee highlighted "extreme examples" of Medicaid planners.
"Presenting these isolated cases as representative of the various people who provide these services is both a disservice to the public and to the professionals who provide Medicaid planning,'' Burns wrote. "The record is clear that there are very few complaints of non-lawyer Medicaid planners engaging in the unauthorized practice of law."
Among those testifying on behalf of the Florida Bar Elder Law Section’s Unlicensed Practice of Law Subcommittee was ElderLawAnswers member attorney Emma Hemness. The advisory opinion states that “most of the testimony was from attorneys practicing in the area of elder law and Medicaid planning, and, by and large, reflected the opinion that a formal advisory opinion is needed to protect the public.”
For the court's ruling and the advisory opinion it adopts, click here.