Non-Lawyers' Advice is Unauthorized Practice of Law Says Florida Supreme Court

Beware Non-Lawyers' Advice to Obtain Medicaid and Veteran Benefits: The Unauthorized Practice of Law

Recently, the Florida Supreme Court issued an opinion that identifies what actions taken by non-lawyers constitute the unauthorized practice of law (UPL).  This opinion, and reporting individuals who commit UPL to The Florida Bar (TFB), will help protect the public.  Be careful: there are some financial advisors, insurance specialists and others who will attempt to charge you for giving advice and filing an application for Veteran Aid & Attendance benefits or, who will attempt to sell you an annuity and tell you it is the only way to qualify for government benefits. 

This is what you, your friends and family need to know is considered the unauthorized practice of law:

1. Having a non-lawyer write an irrevocable trust
2. Having a non-lawyer determine whether you need a qualified income trust to obtain Medicaid benefits, drafting it or telling you how much to fund it
3. A non-lawyer hiring an attorney to review, prepare or modify documents for you if: (a) payment to the attorney passes from you through the non-lawyer; (b) you and the attorney do not have direct communication or an independent relationship; (c) the non-lawyer makes the determination that you need a document prepared
4. Having a non-lawyer create a personal service agreement
5. Having a non-lawyer provide advice about implementing Florida law to obtain Medicaid benefits including which strategy is appropriate.

There are real life dangers of Medicaid planning by non-lawyers which injure the consumer and either delay being approved for Medicaid or, even worse - denial of Medicaid benefits: 

• Failing to inform the consumer of the legal and tax consequences of a personal service agreement
•  Giving advice that causes the consumer to be disqualified or delayed in Medicaid approval which then creates an unpaid debt to the facility
• Creating a document (i.e. personal service agreement) that contains misrepresentations which leads the Medicaid agency to charge the consumer with Medicaid fraud and lose eligibility for Medicaid
• Failing to identify all income sources and the consumer is over the income limit for Medicaid
• Failing to identify all countable resources which place the consumer over the Medicaid resource limit;
• Failing to identify all reasonable means to preserve resources to provide for the consumer's (or their spouse's) quality of life
• Recommending that assets be transferred to a caregiver without a properly drafted personal service agreement.

You, your friends and family deserve to be properly informed of your legal rights and to avoid being taken advantage of by non-lawyers.  Please call me to have your situation thoroughly evaluated and your legal options explained to you so you may be confident in achieving your goals.

 

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Don't Make These 7 Medicaid, Long Term Care Planning Mistakes

Don’t Make these 7 Medicaid/Long-Term Care Planning Mistakes

 Proper planning is required to obtain Medicaid assistance. When people encounter chronic illnesses and face depleting financial resources, consulting with a certified elder law attorney will help you avoid long term care planning and asset preservation pitfalls:

1. Transferring the house: People who transfer their home to their children will find themselves ineligible for Medicaid. The Medicaid agency can look at your financial records and gifts for the prior 5 years. The house does not count as a resource if it is valued at under $536,000.00.

2. Making gifts: Gifting will delay you receiving Medicaid. If you make gifts after you become ill you are going to have a very difficult time convincing the Medicaid agency that you did not do it just to become eligible for Medicaid.

3. Buying an annuity: An annuity is not the right answer for everyone especially single people or widows/widowers.. Since 2008 federal law requires the annuity to name the state Medicaid agency as beneficiary (unless you have a spouse or disabled child). This means any remaining value of the annuity will be paid to the Medicaid agency, not to your family.

4. Using a family member's social security number: If you have a joint account with a family member and only use that family member's social security number, that will not avoid the account being a counted resource by Medicaid. As a joint owner either half or all of the account will be treated as yours (if the other joint owner did not contribute anything to the account you may be treated as owning 100%).

5. Filing an application when you have excess resources: Your application will be denied if you have more than $2,000.00 for single people or more than $115,920.00 if married in countable resources. Learn how special needs trusts, pooled trusts, rental property, spousal refusal and other planning options can help you qualify and preserve assets.

6. Filing an application when you have too much income: Your application will be denied if your gross monthly income in Florida exceeds $2,163.00 (includes social security retirement, pensions, IRA distributions). You need an attorney to draft a qualified income trust before you apply otherwise it will delay approval and you will have to pay privately for your care.

7. Filing an application without legal representation: Don't file a Medicaid application without first having your situation reviewed by a board certified elder law attorney. I can spot potential problems and tell you how to avoid them which can save you time and money and give you peace of mind.

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Key Tax & Financial Figures for Estate Planning in 2014

                         Important Figures to Know As You Plan for 2014

Beginning January 1, 2014, several federal agencies will be providing cost of living increases to select government programs and tax related laws.  Be sure you have current information before you take steps to qualify for Medicaid or, make gifts and certainly discuss it with your accountant.  Here are a few of the most important changes:

1. Federal Gift Tax Exclusion: This sum will remain at $14,000.00  per person to an unlimited number of individuals. Married couples can use split-gifting and gift up to $28,000.00 per person.
2. Federal Estate Tax Exclusion: Up to $5.34 million dollars will be excluded at the death of an individual. Any sum over this amount will be taxed. Consult with your estate planning attorney and accountant on the options to reduce your estate tax.
3. Medicaid Home Equity Limit: A home is exempt in Florida up to the equity value of $543,000.00. That means the value of the home does not prevent a person from receiving Medicaid benefits.
4. Medicaid Income Limit: Florida is one of fourteen states that imposes an income limit for a Medicaid applicant. It will be set at $2,163.00 per month; this is gross before deductions.
5. Medicaid Community Spouse Resource Allowance:  When a member of a married couple becomes ill and applies for Medicaid the healthy spouse can keep up to $117,240.00 of countable resources (i.e. bank accounts, investments).  There are assets that are exempt (whose value does not count) which can be kept in addition to the countable resources.

The Medicaid rules and tax laws have many nuances so it is important to have all your advisors working together to explore the options and the consequences.  Medicaid now has  a 5 year look-back period - if you have made gifts during this period it will delay your ability to qualify for Medicaid - don't dabble, seek qualified advice.

Meet with a qualified elder law attorney and create a plan that will make the aging process easier for you and provide for the comfort and care of your loved ones.  Our firm is here to guide you. We want to be your trusted planning advisor through life.sm

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

Several major federal agencies have announced that they are now providing federal benefits to same-sex legally married couples.  Most recently, the Internal Revenue Service announced that same-sex legally married couples would receive all federal tax rights and responsibilities as provided to heterosexual couples Click here for I.R.S. Release. The best news is that these rights are available regardless of where the couple resides.  Living in a non-recognition state has no impact. Additionally, Health & Human Services announced that Medicare benefits would also be provided to same-sex legally married couples regardless of state of residence.   Additionally, Health & Human Services announced that Medicare benefits would also be provided to same-sex legally married couples regardless of state of residence. Click here for the HHS Press Release 

 

Medicaid is a federal program that helps pay for long-term care. Now that many federal agencies are complying with the U.S. Supreme Court's ruling in Windsor Windsor legal decision, it seems apropos that the Center for Medicare & Medicaid Services ("CMS") follow suit and provide same-sex legally married couples with federal Medicaid spousal impoverishment protections.  The goal of Medicaid spousal impoverishment protections is to enable the healthy spouse to remain in the home and to have sufficient financial resources to care for themself.  This is critical when a couple is coping with of one spouse having a chronic illness that cannot be cured.  When a married couple faces an illness together the experience is the same regardless of sexual orientation, race, color, or origin.  The couple needs and deserves financial security.  Medical spousal impoverishment protections include:

 1.  The healthy spouse keeping more financial resources than the ill spouse.  In Florida, the healthy spouse can keep up to $115,920.00.

 2.  The healthy spouse having a minimal level of income to help pay for the maintenance of the home.  In Florida, the healthy spouse should have a minimum of $1,891.25/month and if below that level is entitled to request diversion of income from the ill spouse.

 3. Permitting the couple to transfer resources to the healthy spouse with no penalty, look-back period, or delay in qualifying for Medicaid.

 4. Protecting the home while the ill spouse is alive as well as after the ill spouse has died. 

 

While the issue of federal benefits being available to same-sex legally married couples is a politically sensitive issue, the reality is that federal benefits must be made available to everyone equally and fairly.  This morning I sent a letter to Cynthia Mann, Deputy Director of CMS. My request is supported by the National Academy of Elder Law Attorneys (NAELA). NAELA.  Click here to read the NAELA letter I will keep my readers posted on the outcome of the request.  In the meantime, be an informed and prepared consumer. Schedule a consultation today and be on your way to creating an effective estate and long-term care plan. Discount coupon for consultation.