Joining the states of Florida, Ohio, and Tennessee, the New Jersey Supreme Court has found that non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unauthorized practice of law.
The state Supreme Court received complaints that non-lawyers retained by
families or nursing homes to assist with the Medicaid application process were providing erroneous or incomplete law-related advice. A state attorney ethics hotline also received reports that non-lawyers have charged “clients” large sums of money for faulty Medicaid-planning legal assistance. This caused the elderly victims significant financial loss.
Specifying what non-lawyers can do
Asked by the state Supreme Court for an opinion specifying what activities non-lawyers may engage in and what activities are the unauthorized practice of law, the Committee on the Unauthorized Practice of Law concluded that while non-lawyer Medicaid advisors may provide limited services, “(a)pplying the law to an individual’s specific circumstances generally is the ‘practice of law.’ A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual.
“But the advisor 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.”
For the Committee on the Unauthorized Practice of Law’s Opinion 53, “Non-Lawyer Medicaid Advisors (Including ‘Application Assistors’) and the Unauthorized Practice of Law,” courtesy of New Jersey elder law attorney Donald D. Vanarelli, go to: http://tinyurl.com/ elr-NJUPL
-The Elder Law Report