In Arizona and throughout the country there are non-lawyers who operate businesses offering Medicaid long term care planning services to seniors. While using those services may appear to be cheaper than hiring a lawyer, the overall costs may actually be far greater. These individuals do not have legal training or knowledge, and improper or incomplete advice can lead seniors or their families to purchase products or take actions that may in the end make it more difficult to qualify for Medicaid or create other problems. In response to problems that have arisen from non-lawyers offering Medicaid planning services, a few states (Florida, Ohio, Tennessee, and most recently this summer, New Jersey) have issued regulations or guidelines which treat certain activities of Medicaid planning by non-lawyers as the prohibited unauthorized practice of law in order to protect the public.
After reports that non-lawyers retained by families or nursing homes to assist with the Medicaid application process were providing erroneous or incomplete law-related advice, and charged large sums causing the elderly victims significant financial loss, New Jersey determined that non-
lawyer Medicaid advisors may provide limited services, but 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. New Jersey not only found that certain non-lawyer activities constitute the unauthorized practice of law, but may also violate New Jersey’s Consumer Fraud Act. In Florida it is a felony for a non-lawyer to render legal advice regarding qualifying for Medicaid benefits, draft of personal service contract, determine the need for or execute an income only trust, or sell income-only trust kits. Ohio, like the other states, recognized the broad authority of non-lawyers under the federal regulations and acknowledged that the general task of consulting with the applicant, reviewing documents to determine the applicant’s resources for Medicaid purposes, preparing and filing an application for Medicaid, and attending hearings with the individual or on behalf of the individual are all permissible. However, the Ohio Board stated: “Medicaid planning in many, if not most, instances involves estate planning. Individuals often use estate tools such as trusts, gifts, and asset transfers to meet Medicaid income and resource-eligibility thresholds. Such estate planning that requires specialized legal training, skill, and experience constitutes the practice of law. However, especially in situations where the applicant’s income and resource levels are near the Medicaid limits, there may be some Medicaid planning scenarios involving only document review and a financial calculation.” In general, these states all concluded that in more complex cases, providing advice on strategies to become eligible is not sanctioned and is the unauthorized practice of law; applying the law to an individual’s specific circumstances is the “practice of law.”
Applying for Medicaid long term benefits (Arizona Long Term Care System –ALTCS) is a highly technical and complex process. In 2013, of the 37,155 ALTCS applications submitted 76% were denied! Which means, you only stand a 24% chance of success on your own. A lawyer knowledgeable about Medicaid law can best help applicants navigate this process. An attorney may be able to help your family find significant financial savings or better care for you or your loved one. This process may involve the use of power of attorney documents, trusts, transfers of assets, purchase of annuities or exempt assets as allowed by state and federal law, increased income and resource allowances for the healthy spouse, and legal methods to avoid estate recovery and/or TEFRA liens against real property.
So, who needs the advice of an experienced lawyer to qualify for ALTCS benefits? The answer is anyone who is truly interested in understanding and qualifying for ALTCS benefits while maximizing income and asset preservation and achieving the best level of long-term care services. Everyone should seek the advice of a lawyer for the reason you will not know if your matter is “simple” or “complex” until you have a complete assessment. The old adage, “you don’t know what you don’t know,” is certainly true with the law. After all, if you wanted an opinion and treatment recommendations for an ailment would you pay for and seek treatment from someone that was not a fully trained and licensed medical professional? No. The same should be obviously true when it comes to seeking legal advice, including advice to qualify for Medicaid long term care benefits, i.e., ALTCS in Arizona. After all, it is both your or your loved one’s savings and well-being at issue.
The elder law attorneys and team at Bivens and Associates, PLLC have many years combined experience and handled hundreds of successful applications resulting in significant assets preserved for our clients. We routinely handle all types of ALTCS cases from the simple to complex, and often coordinate efforts with other professionals to ensure optimal care for our clients. If you need information or assistance with ALTCS benefits, contact us. If you are outside Arizona, you can find a qualified elder law attorney with knowledge and experience through National Academy of Elder Law Attorneys (www.NAELA.org) or check the National Elder Law Foundation (www.NELF.org) for a certified elder law attorney* in your area.
*Ms. Bivens has been a Certified Elder Law Attorney with National Elder Law Foundation (accredited by State Bar of Arizona) for over 10 years, and has 20 years experience.