The Florida Bar Re: Advisory Opinion – Medicaid Planning Activities by Nonlawyers , 183 So. 3d 276 ( 2015 )

Supreme Court of Florida
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No. SC14-211
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THE FLORIDA BAR RE: ADVISORY OPINION—
MEDICAID PLANNING ACTIVITIES BY NONLAWYERS.
[January 15, 2015]
PER CURIAM.
Pursuant to Rule Regulating the Florida Bar 10-9.1, the Florida Bar Elder
Law Section’s Unlicensed Practice of Law Subcommittee petitioned the Florida
Bar’s Standing Committee on the Unlicensed Practice of Law (Standing
Committee) for an advisory opinion on whether it constitutes the unlicensed
practice of law for a nonlawyer to engage in the following Medicaid planning
activities leading up to the Medicaid application: (1) drafting of personal service
contracts; (2) preparation and execution of qualified income trusts; or (3) rendering
legal advice regarding the implementation of Florida law to obtain Medicaid
benefits. As required under rule 10-9.1(f), the Standing Committee provided
notice of and held a public hearing to address these issues where it considered
written and live testimony. The Standing Committee subsequently filed a
proposed advisory opinion in this Court. We have jurisdiction to review the
proposed advisory opinion pursuant to rule 10-9.1(g) of the Rules Regulating the
Florida Bar and article V, section 15 of the Florida Constitution.
After the proposed advisory opinion was filed, interested parties were
permitted to file briefs in support of or in opposition to the proposed advisory
opinion. After considering the proposed opinion and the briefs of the interested
parties, the Court directed the Standing Committee to file a revised proposed
advisory opinion with certain clarifications regarding the activities of nonlawyer
staff of the Florida Department of Children and Families in relation to their duty to
assist the public in the Medicaid application process. The revised proposed
advisory opinion is hereby approved and is set forth in the appendix to this
opinion.1 As provided in Rule Regulating the Florida Bar 10-9.1(g)(4), the
advisory opinion shall have the force and effect of an order of this Court and shall
be published accordingly.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
1. References to the transcript of the live testimony heard by the Standing
Committee at the public hearing and to written testimony and other materials
considered by the Standing Committee have been deleted. Other minor editorial
changes have also been made.
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Original Proceeding – The Florida Bar Re: Advisory Opinion – Medicaid Planning
Activities by Nonlawyers
C.C. Abbott, Chair, Standing Committee on the Unlicensed Practice of Law,
Tallahassee, Florida; Carsandra Denyce Buie, Past Chair, Standing Committee on
the Unlicensed Practice of Law, Tallahassee, Florida; Lori S. Holcomb, and Jeffrey
Todd Picker, The Florida Bar, Tallahassee, Florida, on behalf of the Standing
Committee on the Unlicensed Practice of Law; Jana McConnaughhay, Chair, Elder
Law Section of The Florida Bar, Tallahassee, Florida; John Sanders Clardy, III,
Past Chair, Elder Law Section of the Florida Bar, Clardy Law Firm, P.A., Crystal
River, Florida; and Robert M. Sondak of Cohen, Chase, Hoffman & Schimmel,
P.A., Miami, Florida, on behalf of the Elder Law Section of The Florida Bar;
for Petitioner
Cindy Leann Huddleston and Anne Lisa Swerlick, Tallahassee, Florida, on behalf
of Florida Legal Services, Inc., and Valory Toni Greenfield, Miami, Florida, on
behalf of Florida Legal Services, Inc.; Anthony L. Turbeville, Lakeland, Florida,
pro se; and Stephen Michael Masterson, Tallahassee, Florida, on behalf of William
D. Burns,
Responding with comments
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APPENDIX
THE FLORIDA BAR
STANDING COMMITTEE ON THE
UNLICENSED PRACTICE OF LAW
FAO #2011-4, MEDICAID PLANNING ACTIVITIES BY NONLAWYERS
_______________________________________________________________/
REVISED PROPOSED ADVISORY OPINION
October 14, 2014
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INTRODUCTION
Pursuant to rule 10-9 of the Rules Regulating The Florida Bar, The Florida
Bar’s Elder Law Section UPL Subcommittee petitioned the Standing Committee
on Unlicensed Practice of Law (Standing Committee) for an advisory opinion on
certain activities of nonlawyer Medicaid planners.
The petitioner requested an advisory opinion on whether it constitutes the
unlicensed practice of law for a nonlawyer to engage in the following Medicaid
planning activities leading up to the Medicaid application: (1) drafting of personal
service contracts; (2) preparation and execution of qualified income trusts; or (3)
rendering legal advice regarding the implementation of Florida law to obtain
Medicaid benefits. The preparation of the application for Medicaid benefits was
not considered as federal law authorizes nonlawyer assistance in the application
process.1
Pursuant to Rule 10-9.1(f) of the Rules Regulating The Florida Bar, public
notice of the hearing was provided on The Florida Bar’s website, in The Florida
Bar News, and in the Tampa Bay Times. The Standing Committee held a public
hearing on February 22, 2013.
Testifying on behalf of the petitioner was Twyla Sketchley, Chair of the
Elder Law Section of The Florida Bar, and John Frazier, Chair of the Unlicensed
1. 42 C.F.R. § 435.908.
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Practice of Law Subcommittee of the Elder Law Section of The Florida Bar. In
addition to the petitioner, the Standing Committee received testimony from
Carolyn Norton; Peggy Crabbe; Jack Rosenkranz, an attorney; Emma Hemness, an
attorney; Gerald Hemness, an attorney; Amy O’Rourke; Jeff Brown, an attorney;
and Sonja Kobrin.
In addition to the testimony presented at the hearing, the Standing
Committee received written testimony which has been filed with this Court. 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.
DISCUSSION
In June 2008, the Standing Committee considered a request for direction
regarding the activities of nonlawyer Medicaid planners as a result of UPL
complaints being investigated by The Florida Bar. The Standing Committee voted
to provide the following direction:
The following activities of nonlawyer Medicaid planners
would constitute the unlicensed practice of law:
establishing irrevocable trusts, establishing qualified
income trusts, and hiring an attorney to review, prepare,
or modify documents for customers if payment to the
attorney was through the company. The committee voted
that the following activities would have to be determined
on a case-by-case basis: restructuring assets, counseling
customers on the best way to get Medicaid approval, and
advertising as an “elder counselor.” The committee
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voted that the hiring of an attorney to review, prepare, or
modify documents for customers if there was a direct
relationship with the attorney and payment was made
directly to the attorney would not be the unlicensed
practice of law.
This direction was also provided to the Elder Law Section in May 2009. So
while the issue of nonlawyer Medicaid planning came before the Standing
Committee previously, this is the first request for a formal advisory opinion.
The issue of the activities of the Florida Department of Children and
Families (DCF) staff was not part of the earlier direction provided by the Standing
Committee or the request for a formal advisory opinion or this opinion.
Nonlawyer DCF staff are government employees responsible for assisting in the
application process. DCF staff have an affirmative duty to tell a Medicaid
applicant about Medicaid trusts and other eligibility laws and policies governing
the structuring of income and assets when relevant to the applicant’s facts and
financial situation. When performed by DCF staff, these activities are not the
unlicensed practice of law. They will allow each applicant, and the applicant’s
attorney, the ability to choose the course of action for qualifying for assistance that
best suits the applicant.
Each Medicaid planning activity posed by the petitioner will be addressed
individually.
Drafting of Personal Service Contracts
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A personal service contract is one of the strategies used by Medicaid
applicants to spend down assets so that their countable assets are within the
allowable asset limit provided by law for Medicaid eligibility. It is a contract for
personal care services between the Medicaid applicant and a caregiver, often an
adult child, for services that are not provided by the nursing home or assisted living
facility. As one witness noted, Florida law only requires nursing homes to give a
little over two hours of care per day per resident, which leaves almost twenty-two
hours of the day that the resident is not getting personal hands-on care. The
personal service contract provides for care during that other time.
There are both legal and tax ramifications if a personal service contract is
not done properly. One witness testified that one of his clients had a nonlawyer
service draft a personal service contract that was rejected by Medicaid, which
resulted in the client not receiving Medicaid benefits for several months, costing
the client thousands of dollars. Another witness testified about a client who
engaged a nonlawyer Medicaid planning service and was advised by the service
that a personal service contract was needed and the contract that was prepared
called for her son, who lived 12 hours away by car and visited her 2-3 times per
year, to provide 26-27 hours of care per week. The family is open to charges for
Medicaid fraud and the client is no longer eligible for Medicaid benefits.
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The payment for services under a personal service contract is based on the
resident’s life expectancy and is made to the caregiver in a lump sum payment up
front. The payment for services under a personal service contract is treated by the
Internal Revenue Service as a taxable event for the caregiver. Without proper
advice and planning, this may result in a huge tax liability. The Standing
Committee received testimony about nonlawyer Medicaid planners not properly
advising of this potential tax liability. This testimony demonstrates that the
improper drafting of a personal service contract and improper tax advice and
planning causes public harm.
The preparation of a contract is the practice of law. In The Florida Bar v.
Sperry, 140 So. 2d 587, 597 (Fla. 1962), vacated on other grounds, 373 U.S. 379
(1963), the Court held that “the practice of law also includes the giving of legal
advice and counsel to others as to their rights and obligations under the law and the
preparation of legal instruments, including contracts, by which legal rights are
either obtained, secured or given away, although such matters may not then or ever
be the subject of proceedings in a court.” A personal service contract is a contract
which imposes duties and obligations on both parties to the contract. The
caregiver agrees to provide a certain amount of care and specified services per
week in exchange for payment for that care and services. When a nonlawyer
Medicaid planner drafts a personal service contract the nonlawyer is practicing
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law. It is the opinion of the Standing Committee that a nonlawyer’s drafting of a
personal service contract constitutes the unlicensed practice of law.
Preparation and Execution of Qualified Income Trusts
If a Medicaid applicant’s gross monthly income exceeds a certain amount, a
properly drafted Qualified Income Trust must be established and a Qualified
Income Trust checking account must be opened at a bank in order for the applicant
to qualify for Medicaid. The income trust checking account must be funded each
month with the income that exceeds the acceptable limit in order for the recipient
to obtain Medicaid benefits. If a Qualified Income Trust is not properly
established or properly funded each month, then the Medicaid applicant will not be
eligible for Medicaid.
The Standing Committee received testimony about a nonlawyer improperly
preparing a Qualified Income Trust resulting in Medicaid benefits being denied,
which cost the client several months at the nursing home. In another case, a
nonlawyer incorrectly advised the client regarding the funding of a Qualified
Income Trust, resulting in the client being denied Medicaid benefits. The client
had a $7,000 bill from the nursing home that she was unable to pay. In other
testimony, a nonlawyer improperly executed an irrevocable trust form to qualify
the client for veterans benefits. This strategy failed to allow the client to qualify
for Medicaid benefits and caused a lengthy disqualification of Medicaid benefits.
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The Court, in The Florida Bar re: Advisory Opinion–Nonlawyer Preparation
of Living Trusts, 613 So. 2d 426 (Fla. 1992) (hereinafter “Living Trust case”),
held that the assembly, drafting, execution, and funding of a living trust constitutes
the practice of law, as does determining the need for a living trust and identifying
the type of living trust most appropriate for the client. The same would be true for
a Qualified Income Trust. A living trust is a legal document affecting an
individual’s important legal rights. A Qualified Income Trust is also a legal
document affecting an individual’s important legal rights. In order to protect those
rights, the person preparing either type of trust must have a knowledge of the law
greater than that possessed by the average citizen. It is therefore the opinion of the
Standing Committee that a nonlawyer’s determination of whether a Qualified
Income Trust is necessary as well as the assembly, execution and funding of the
trust constitutes the unlicensed practice of law.
While the Court held that the preparation of a trust constitutes the unlicensed
practice of law, the Court also found that gathering the necessary information for
the living trust does not constitute the practice of law, and nonlawyers may
properly perform this activity. It is the opinion of the Standing Committee that this
limited exception is not applicable here.
The holding allowing the gathering of information in the Living Trust case
was based on the Court’s holding in In re: The Joint Petition of The Florida Bar
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and Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968). Raymond,
James dealt with the activities of securities brokers, a regulated industry. The
parties entered into a stipulation, approved by the Court, which set forth activities
that constituted the unlicensed practice of law and activities that were authorized.
In the context of the case, the Court held that “Raymond, James and Associates,
Inc., its officers, agents and employees properly may . . . [s]olicit specific facts
about customers’ or prospective customers’ assets.” Id. at 614. The holding did
not allow for the gathering of any information, it allowed for the gathering of facts
about a customer’s assets, an activity a licensed securities broker would need to be
able to perform to conduct the business of selling securities.
Similarly, in the Living Trust case, many of the nonlawyers involved in the
sale of a living trust were licensed life insurance agents. The life insurance agents
sought to “ ‘preserve permissible existing rights (and duties) for qualified,
regulated, non-lawyer insurance agents to participate in their proper roles in the
creating of a living trust.’ ” Living Trust, 613 So. 2d at 428. The Court held that
the opinion was “consistent with the ‘existing rights’ of life insurance agents. Life
insurance agents may properly sell life insurance that will fund a living trust and
may offer advice on funding the trust from a financial standpoint.” Id. Clearly, a
life insurance agent would have to be able to gather facts about a person’s assets to
perform these activities.
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When read in context, it is the opinion of the Standing Committee that the
information a nonlawyer may gather is limited to information about the customer’s
assets when such information is necessary for the nonlawyer to conduct a business
for which they are licensed and regulated. Support for this can be found in the
Court’s holding in The Florida Bar v. American Senior Citizens Alliance, Inc., 689
So. 2d 255 (Fla. 1997). The nonlawyers in American Senior Citizens Alliance
were in the business of selling living trusts. They used high pressure sales tactics
and targeted the elderly. They also used the Court’s holding regarding gathering
information in the Living Trust case to justify their activities. The Court disagreed
and found the reliance on that language “an unreasonable interpretation of the
phrase ‘gathering the necessary information.’ ” Id. at 259.
Allowing nonlawyer Medicaid planners to gather information for the
preparation of a Qualified Income Trust would also be an unreasonable
interpretation of the phrase. The testimony revealed that nonlawyer Medicaid
planners are essentially unregulated, as there are no licensing, education, or
advertising requirements. Unlike the securities brokers in Raymond, James and
Associates, Inc. or the life insurance agents in the Living Trust case, if the
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nonlawyer cannot prepare the Qualified Income Trust, there is no legitimate reason
for the nonlawyer to gather information about the customer’s assets.2
Consequently, it is the opinion of the Standing Committee that a
nonlawyer’s preparation, execution, funding of, and determination of the need for a
Qualified Income Trust constitutes the unlicensed practice of law. This includes
the gathering of information for the Qualified Income Trust.
Rendering Legal Advice Regarding the Implementation of Florida Law to
Obtain Medicaid Benefits
Medicaid eligibility, as part of Medicaid planning, involves a highly
technical set of federal and state statutes and regulations, which in Florida is well
over 3,000 pages. Medicaid planning involves: (1) the assessment of all facts
relevant to a client’s situation, including personal, financial, familial, and
2. The preparation of the Medicaid application is not the unlicensed practice
of law as it is authorized by federal law. Therefore, the preparation of the
application was not part of the question presented to the Standing Committee. To
the extent that it is necessary for a nonlawyer to gather information about an
individual’s assets to complete the application, that activity would also be
authorized. In addition, to the extent a federal or state statute or regulation allows
a government employee to assist in the application process, the conduct is
authorized and not the unlicensed practice of law. As noted earlier, nonlawyer
DCF staff are government employees responsible for assisting in the application
process. DCF staff has an affirmative duty to tell a Medicaid applicant about
Medicaid trusts and other eligibility laws and policies governing the structuring of
income and assets when relevant to the applicant’s facts and financial situation.
When performed by DCF staff, these activities are not the unlicensed practice of
law. They will allow each applicant, and the applicant’s attorney, the ability to
choose the course of action for qualifying for assistance that best suits the
applicant.
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historical; (2) application of those particular facts to the laws governing Medicaid;
(3) developing a plan to structure or spend those assets in compliance with those
laws or planning to reverse actions already taken to correct potentially
unauthorized activity to minimize negative legal consequences; (4) drafting legal
documents to execute the plan; and (5) assisting the client in correctly executing a
particular plan.
Medicaid planning includes making sure the applicant will meet the asset
and income test for Medicaid eligibility. An unmarried Medicaid applicant can
own no more than $2,000 in “countable” assets. Typical countable assets include
bank accounts, stocks, bonds, annuities, and some types of life insurance. The two
primary non-countable assets are the homestead and one automobile. For married
applicants, if both spouses are applying for Medicaid, there is a $3,000 asset limit.
If only one spouse is applying for Medicaid, the nursing home resident may only
have $2,000 in assets, and the community spouse can have up to $113,640 in
countable assets. Federal and Florida law allow certain options to ensure that the
spouse of the Medicaid applicant is not impoverished in attempting to obtain
Medicaid benefits for an ill spouse. Some of the strategies used to spend down
assets include: (1) the use of a personal service contract; (2) the use of a special
needs irrevocable pooled trust; (3) the use of a Medicaid qualifying annuity; (4) the
purchase of income producing property; (5) the purchase of a homestead; (6)
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gifting; (7) the purchase of other exempt assets; (8) repairs to the homestead; (9)
payment of debts and expenses; (10) the purchase of an irrevocable funeral service
or cremation contract; (11) a burial savings account; and (12) the purchase of an
automobile.
Proper Medicaid planning involves providing advice on the purchase and
titling of exempt assets and the transfer of countable assets in excess of $2,000 to
the community spouse. Legal strategies to protect excess assets of the community
spouse include: (1) assignment of rights to support (spousal refusal); (2) the use of
a promissory note; and (3) a Medicaid qualifying annuity.
The Court, in Sperry, developed the following test to determine whether an
activity constitutes the practice of law:
[I]n determining whether the giving of advice and
counsel and the performance of services in legal matters
for compensation constitute the practice of law it is safe
to follow the rule that if the giving of [the] advice and
performance of [the] services affect important rights of a
person under the law, and if the reasonable protection of
the rights and property of those advised and served
requires that the persons giving such advice possess legal
skill and a knowledge of the law greater than that
possessed by the average citizen, then the giving of such
advice and the performance of such services by one for
another as a course of conduct constitute the practice of
law.
Sperry, 140 So. 2d at 591.
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Assessing the facts relevant to a client’s situation, applying those facts to the
laws governing Medicaid, developing a plan to structure or spend the client’s
assets in compliance with those laws, and drafting legal documents to execute the
plan, would constitute the practice of law under the Sperry test. It is the opinion of
the Standing Committee that when a nonlawyer engages in these activities or
renders legal advice regarding the implementation of Florida law to obtain
Medicaid benefits the nonlawyer is engaged in the unlicensed practice of law. This
includes advising an individual on which legal strategy or strategies under federal
or Florida law are appropriate given the individual’s factual circumstances.
ATTORNEY INVOLVEMENT
Some nonlawyer Medicaid planning companies claim to have relationships
with lawyers who draft the legal documents for the company’s clients. Testimony
indicated that this sometimes occurred with the client never meeting with or
speaking to the attorney or only briefly speaking to the attorney. Other companies
advertise that they use a team of professionals, including an attorney, to assist the
client. Having a lawyer draft legal documents for the company’s clients would still
be an unlicensed practice of law problem for the company under Nonlawyer
Preparation of Living Trusts, and American Senior Citizens Alliance. It is the
opinion of the Standing Committee that unless the client establishes an
independent attorney-client relationship with the attorney, payment from the client
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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, then
the company would be engaged in the unlicensed practice of law.
THE FLORIDA BAR V. BRUMBAUGH
Two of the activities presented to the Standing Committee involve the
preparation of documents – the personal service contract and the Qualified Income
Trust. When discussing the preparation of documents, the Court often looks to The
Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). For the following reasons
the Standing Committee is of the opinion that Brumbaugh should not be used as
justification to allow the sale of a personal service contract kit or Qualified Income
Trust kit in Medicaid eligibility matters.
Marilyn Brumbaugh operated a secretarial service where she offered to do
typing services for various do-it-yourself legal matters. She also sold legal forms
and kits. Following the holdings of other states, the Court held that a nonlawyer
may sell legal kits and general information containing forms and may complete the
forms with information provided by the individual in writing. In so holding, the
Court noted that
Although there is a danger that some published material
might give false or misleading information, . . . [w]e
must assume that our citizens will generally use such
publications for what they are worth in the preparation of
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their cases, and further assume that most persons will not
rely on these materials in the same way they would rely
on the advice of an attorney or other persons holding
themselves out as having expertise in the area. The
tendency of persons seeking legal assistance to place
their trust in the individual purporting to have expertise
in the area necessitates this Court’s regulation of such
attorney-client relationships. . . .
Id. at 1193.
Although Brumbaugh found that nonlawyers could sell forms and kits and
complete them with information provided in writing by the customer, the facts
showed that Ms. Brumbaugh went beyond the mere typing of the forms. As found
by the Court, her customers relied on her to properly prepare the necessary forms,
she advised clients as to various remedies available to them or otherwise assisted
them in preparing the necessary forms, she inquired into or answered questions of
her clients to determine which forms would be necessary and advised how to best
fill out the forms. Because she placed herself in a position of reliance and gave her
customers advice, the Court held that Ms. Brumbaugh was engaged in the
unlicensed practice of law.
Brumbaugh was decided in 1978, a time when the legal information in
question was disseminated in print, not on the internet. While the Court could
assume “that our citizens will generally use such publications for what they are
worth . . . and further assume that most persons will not rely on these materials . .
.,” the same cannot be said to be true now. Id. Included in the written testimony
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are website screen shots from various nonlawyer Medicaid planning companies.
Some companies indicated that attorneys are not necessary for Medicaid planning,
while others hold themselves out as Medicaid “experts” or “specialists” at the same
time they state how complex and tricky the Medicaid rules and regulations are.3
The nonlawyer companies are placing themselves in a position where the customer
will not only rely on their information and expertise, but will also trust that the
information and services they are receiving are true and correct. Clearly, the
nonlawyers are putting themselves in a position of reliance and the consuming
public has no reason to believe otherwise.
The use of the internet, the complexity of Medicaid planning and the harm
that can result from nonlawyers giving improper advice, more fully discussed
below, leads the Standing Committee to the conclusion that the use of legal kits
and forms should not be allowed in this area. Although allowed since 1978,
whether an activity is the unlicensed practice of law must be viewed in light of the
circumstances of each case. “[A]ny attempt to formulate a lasting, all
3. The Court has held that it constitutes the unlicensed practice of law for a
nonlawyer to advertise that his or her company specializes in legal areas as this
implies expertise in the legal field. The Florida Bar v. Davide, 702 So. 2d 184
(Fla. 1997). Consequently, it is the opinion of the Standing Committee that to the
extent that a nonlawyer advertises that he or she is a Medicaid expert or specialist
or in such fashion as to induce reliance on the nonlawyer to assist the individual
with their Medicaid planning, the nonlawyer is engaged in the unlicensed practice
of law.
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encompassing definition of ‘practice of law’ is doomed to failure ‘for the reason
that under our system of jurisprudence such practice must necessarily change with
the everchanging business and social order.’ ” Id. at 1191-92 (citations omitted).
The changes that have taken place since 1978, especially the use of the internet,
necessitate a change under the circumstances present here.
HARM AND THE POTENTIAL FOR HARM
As noted earlier, the testimony revealed that nonlawyer Medicaid planners
are essentially unregulated, as there are no licensing, education, or advertising
requirements. Because of this lack of regulation, nonlawyer 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.
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
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described herein constitute the unlicensed practice of law and should not be
authorized.
CONCLUSION
It is the opinion of the Standing Committee that it constitutes the unlicensed
practice of law for a nonlawyer to draft a personal service contract and to
determine the need for, prepare, and execute a Qualified Income Trust including
gathering the information necessary to complete the trust. Moreover, a nonlawyer
should not be authorized to sell personal service or Qualified Income Trust forms
or kits in the area of Medicaid planning.
It is also the opinion of the Standing Committee that it constitutes the
unlicensed practice of law for a nonlawyer to render legal advice regarding the
implementation of Florida law to obtain Medicaid benefits. This includes 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.
It is the position of the Standing Committee that a nonlawyer’s preparation
of the Medicaid application itself would not constitute the unlicensed practice of
law as it is authorized by federal law. As noted earlier, it is also not the unlicensed
practice of law for DCF staff to tell Medicaid applicants about Medicaid trusts and
other eligibility laws and policies governing the structuring of income and assets
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when relevant to the applicant’s facts and financial situation. This proposed
advisory opinion is the Standing Committee on Unlicensed Practice of Law’s
interpretation of the law.
Respectfully Submitted,
/s/ C.C. Abbott by Jeffrey T. Picker
C.C. Abbott, Chair
Standing Committee on
Unlicensed Practice of Law
The Florida Bar
651 E. Jefferson Street
Tallahassee, FL 32399-2300
(850) 561-5840
Fla. Bar No. 467065
Primary Email: upl@flabar.org
/s/ Jeffrey T. Picker
Jeffrey T. Picker
Fla. Bar No. 12793
/s/ Lori S. Holcomb
Lori S. Holcomb
Fla. Bar No. 501018
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5840
Primary Email: jpicker@flabar.org
Secondary Email: upl@flabar.org
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