A Florida insurance agent and stockbroker is asking the state Supreme Court to revisit its recent ruling that non-lawyers who engage in various Medicaid planning activities are engaging in the unlicensed practice of law.
On January 30, 2015, William D. Burns filed a motion for a rehearing or, alternatively, clarification of the court’s opinion to define how unlicensed practice of law regulations are to be balanced with federal law, to define the use of the term “application process,” and to provide specific guidelines for Medicaid planners who hold various professional licenses.
Burns charges that the court’s opinion conflicts with federal policy regarding who may assist Medicaid applicants, uses “very few anecdotes” to tar “the entire Medicaid planning industry in a disturbing manner,” and will make it harder for Medicaid applicants and their families to make use of services such as insurance, securities, and financial planning.
Burns tells the court that the insurance industry’s response to the opinion “has been dramatic. The week following the opinion, several annuity companies notified agents they were withdrawing their Medicaid planning annuities from the Florida market.” (See Exhibit A of the petition.) He charges that the members of the Bar’s Elder Law Section had “a clear self-interest” in this result. “To the extent that [non-lawyer Medicaid planners] are discouraged or eliminated from providing these services,” Burns states, “lawyers benefit financially.”
Burns's petition contends that although the court’s opinion treats Medicaid planning as a legal, not a financial, matter, it is in fact a multi-disciplinary process. “The [court’s opinion] provides no guidance,” Burns writes, “regarding when the lawyer oversteps the limits of his or her license and becomes guilty of the unauthorized practice" of regulated professions like securities broker, insurance agent or financial planner.
To read Burns’s petition, click here. For the attachments to his motion (“Exhibit A”), click here.
UPDATE: The Florida Bar Standing Committee on the Unlicensed Practice of Law and the Elder Law Section have filed separate responses to the Motion for Rehearing. Click here and here for their respective responses.
Our thanks to Florida ElderLawAnswers member attorney Howard S. Krooks for bringing these developments to our attention.
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