Nonlawyer Medicaid planning is a completely unregulated business. As the Florida Supreme Court reaffirms in the 2015 Advisory Opinion, there is no state or federal agency to license and regulate Medicaid planners. Likewise there are no educational, testing or advertising requirements.

While someone might hold a professional license to sell annuities or practice financial planning, that license and impressive title does not authorize the person to practice Medicaid planning legal activities.

Insurance agents and financial planners are within the law to sell annuities and life insurance, and to serve as a designated representative for a Florida Medicaid applicants. However, the drafting of legal documents, such as personal services contracts and qualified income trusts, and giving legal advice on using Florida law to obtain Medicaid benefits, crosses the line into the unlicensed practice of law.

When a case of nonlawyer Medicaid planning becomes a matter of UPL, the Florida Bar may step in.

The Florida Bar, as an arm of the Supreme Court, is the state authority charged with investigating matters pertaining to the unlicensed practice of law and prosecuting offenders. All complaints alleging unlicensed practice of law must be signed, in writing, and under oath.

In order for UPL to be managed, somebody must report it. 

To compound the problem, the Florida Bar will not open a UPL case without someone filing a UPL complaint with the Bar.”

The public is rarely reporting cases of UPL. Nobody wants to be a whistleblower. The stigma of snitching creates a sort of “code of silence” from the shame of being labeled an informant. In addition, long term care residents and their families may fear retaliation by a facility who makes a referral.

The justification for filing an official UPL complaint – snitching if you will – lies in the intent. Informing on the unlicensed practice of law is not a self-serving endeavor, but is in the public interest.

The “Catch-22” of UPL

In effect, the Florida Bar is relying on its citizens to be the watchdogs and whistleblowers, with respect to investigating the unlicensed practice of law in Florida.

Yet few people are willing to file UPL complaints. The absence of reporting UPL in turn encourages its continuance.

We have a responsibility to one another – and it seems especially to our unsuspecting seniors and their families. Reluctance to take a legitimate case of UPL to the Florida Bar leaves these individuals in a tragically vulnerable situation.

What is our duty?

In the Florida Supreme Court Advisory Opinion, the absence of regulations imposed on nonlawyer Medicaid planners falls under the heading of HARM AND THE POTENTIAL FOR HARM.

It is our view that by reporting UPL, the higher virtue is served by respecting the well-being of others. It is acting responsibly on behalf of society to report bad behavior.

Contrary to arguments of many nonlawyer Medicaid planners, this is not a turf war between lawyers and nonlawyers. There is no effort to protect some sort of attorney monopoly on legal services, taking away “cheaper” alternatives for people who desire to go that route. Neither is this an attempt to take away conveniences for consumers. Indeed, Medicaid planning by nonlawyers may not be cheaper. Also nonlawyers do not offer alternatives as lawyers do.

The purpose of this discussion is to protect the public. It is a wakeup call to all of us. It is up to our own citizens to open up communication between the community and the Florida Bar.

It is also a matter of education. Many UPL victims are unaware they have been victimized until it is too late. They may be ashamed or embarrassed about putting their trust in the wrong hands. On the flip side, many offenders and those who unwittingly assist them are ignorant about the severity of their own actions.

As stated by the Florida Bar, “The Florida Bar unlicensed practice of law (UPL) system [is] established by the Supreme Court of Florida to protect the public against harm caused by unlicensed individuals practicing law.

File a UPL complaint 

How to File a UPL Complaint witht he Florida Bar: 

The Florida Bar provides a short form that can be completed in order to report alleged instances of UPL. The form is available for the public to download at www.floridabar.org, along with helpful information about how the process works, and what to expect.

Learn all about it here:

Florida Bar, Online Resource for the Public:

Consumer Pamphlet: Filing an Unlicensed Practice of Law Complaint

at:
https://www.floridabar.org/public/consumer/pamphlet012/

Florida Bar UPL Branch Offices 

The UPL department has offices in Tallahassee, Ft. Lauderdale, Miami, Orlando and Tampa. The addresses are:

Tallahassee
The Florida Bar
UPL Department
651 E. Jefferson Street
Tallahassee, FL 32399-2300
(850) 561-5840

Ft. Lauderdale
The Florida Bar
UPL Department
Lake Shore Plaza II
1300 Concord Terrace, Ste. 130
Sunrise, FL 33323-2899
(954) 835-0233, ext. 4148

Miami
The Florida Bar
UPL Department
Rivergate Plaza, Ste. M100
444 Brickell Ave.
Miami, FL 33131-2404
(305) 377-4445, ext. 4218

Orlando
The Florida Bar
UPL Department
The Gateway Center
1000 Legion Place, Ste. 1625
Orlando, FL 32801
(407) 425-0473

Tampa
The Florida Bar
UPL Department
4200 George J. Bean Pkwy., Ste. 2580
Tampa, FL 33607-1496
(813) 875-9821, ext. 4323

Excerpt From: John R. Frazier, Leonard E. Mondschein. “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law.” iBooks.