One of the biggest issues our seniors face is paying for long term care in a skilled nursing home or assisted living facility. Most seniors cannot afford up to $100,000 a year to live in a quality facility.
Florida’s Medicaid program provides vital financial assistance to many seniors who need long term care.
Medicaid is a needs-based program. Besides medical eligibility requirements, the Medicaid program has strict financial guidelines that all applicants must meet. Many seniors exceed the financial limits – yet still cannot afford to pay the costs of the nursing home care they desperately need.
This is where the expertise of an elder law attorney who practices primarily in Medicaid law comes in.
Medicaid planning attorneys, also known as Elder Law attorneys, use the law to legally and ethically position Medicaid applicants within the income and asset guidelines for the Medicaid program. The attorneys are often able to preserve all or a portion of the senior’s assets to support the senior’s quality of life, without “spending down” all of their assets.
This is the basis of Medicaid Planning.
An attorney has a duty of loyalty only to their client and will do their best to achieve the client’s goals. Proper handling of the legal aspects of Medicaid approval is critical to the senior’s well-being, which includes prompt and proper payment for care.
Many seniors and their families are misled or deceived by people who promote themselves as “Medicaid Planners,” but are not licensed attorneys.
They hold themselves out to be “experts” and “specialists” who can financially qualify the senior for nursing home Medicaid. But many may not have the senior’s best interest in mind.
The dangers that follow can be catastrophic for the senior. The consequences can also harm the facility in which the senior lives.
Often the aim of the nonlawyer “specialist” is to induce the senior into buying financial products.
Equally dangerous are people who have the best of intentions, and attempt to “help” seniors apply for and become eligible for Medicaid.
For example, some Florida nursing homes refer their patients to nonlawyer “Medicaid planning companies” to help them with the application process or with qualifying for benefits. This can lead to disastrous results.
These Medicaid planning companies are not always a senior’s advocate. Their loyalties may lie with their own prosperity.
Incorrect advice, fraudulent planning activities or improperly prepared legal planning documents, from any nonlawyer source, can cause the senior to spend down their assets incorrectly, or transfer vital assets inappropriately—thus ruining the senior’s chances to qualify for Medicaid.
Eight reasons to use and elder law attorney (and NOT a nonlawyer) to assist in qualifying a person for Medicaid benefits
- Financial planners, insurance agents, etc. are making “hidden money” on top of their service fee by selling “Medicaid Friendly” or “Medicaid Qualifying” annuities and related financial products. The planner or agent earns a commission from each sale. Worse yet, they don’t have to disclose they are earning a commission – and thus are making hidden fees
- Annuity and insurance sales agents are by definition sales persons. Attorneys, on the other hand, have a fiduciary responsibility to their clients. (A person acting in a fiduciary capacity must act in the best interest of the client, and not in one’s own best interest.)
- Nonlawyer Fees. In addition to earning commissions, nonlawyer Medicaid planners typically charge a fee to prepare and submit applications to the Department of Children and Families.
- Nonlawyers are not licensed by the Florida Bar. There is no way to know if nonlawyers have training, knowledge or skills. To become an attorney one must have at least 7 years of education, take an extensive exam, and complete continuing legal education (CLE) requirements.
- Nonlawyers are not regulated by the Florida Bar. There is no attorney-client relationship, and no accountability for complaints or lawsuits. Lawyers must behave in accordance with rules regulating their practice and can be disciplined for failing to do so.
- No Legal Malpractice Insurance. Only a licensed attorney is entitled to have legal malpractice insurance. If the Medicaid planning fails, and there is no malpractice insurance, the applicant stands to lose his or her life savings and the facility may be stuck with a large unpaid bill.
- The unlicensed practice of law is a felony in the state of Florida.
- Confidentiality. Lawyers have an ethical responsibility to maintain confidentiality. Nonlawyers do not.
Excerpt From: John R. Frazier, Leonard E. Mondschein. “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law.” iBooks.