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Why Do I Need an Elder Law Attorney for Medicaid Eligibility?

Just this week I received two emails from prior clients with issues related to a Medicaid application filed by a non-attorney. In both cases, I can help correct the errors, but the errors would not have been made if the person filing the application had advised the person to seek the counsel of an elder law attorney. A few times, the damage done could not be corrected, at least immediately.

So, let me quickly give you a few Pros and Cons about using a non-attorney vs an elder law attorney for filing a Medicaid application.

PROS:

  • Cheaper than hiring me or another attorney
  • May be a good choice if the applicant is a single person, with assets below $2000, and income below the cap (currently $2250)

CONS:

  • Income considerations for spouse in the community may not be explored
  • Spend-down options may not be fully explored with applicant and family
  • Preservation of assets is not a priority
  • Limited knowledge of the actual rules and very little, if any, knowledge of the law
  • Incorrect application of the rules as they apply to spouses
  • Failure to report assets due to lack of due diligence
  • Failure to report income due to lack of due diligence
  • Incorrect information as to transfer of assets
  • Incorrect timing of application to maximize benefits
  • Incorrect understanding of countable and non-countable assets
  • Don’t have access to rule changes and current issues being discussed that may affect ongoing or future applications
  • No follow up estate planning to preserve the Medicaid benefit if the well spouse predeceases

These are some of the actual issues that clients have brought me over the past few years. The Florida Bar has issued stern warning to those who engage in Medicaid planning that equals the unauthorized practice of law. I have referred clients to the Florida Bar who were harmed by the practices of non-attorney Medicaid planners but, unfortunately, there is little they can do. As an attorney, I am bound to provide a certain level of service and, if I don’t, I am subject to a malpractice claim. Non-attorney planners have no licensing agency that oversees the services they provide.

When I meet with clients, I tell them if they need me to do the application. If I feel the application can be processed by a non-attorney, I will refer them to someone (always affiliated with a nursing home or assisted living community) who will be able to help them. But, before they go, I will advise them of the issues they should be aware of such as the spousal impoverishment rules, rules regarding spend-down of assets, and how penalty transfers might be corrected.

My goal is to educate the applicant and the family, so they know what to expect, the right questions to ask, and that all pieces of the puzzle are complete, resulting in approval of the application and the best outcome for all involved.

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