September 28

Three Florida Elder Law Attorneys Publish Handook Warning of Unlicensed Practice of Law in Medicaid Planning

Many people who are not licensed attorneys promote themselves as “Medicaid Planners.”  A number of states have determined that non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unlicensed practice of law (UPL).  Florida has been at the forefront of efforts to push back against UPL in this area.

Now, three Florida elder law attorneys have written a handbook aimed at educating nursing home and assisted living facility managers and staff in that state about the UPL as it pertains to Medicaid planning.  In writing the 142-page “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law,” attorney Leonard E. Mondschein, and two Florida colleagues, John R. Frazier and Twyla L. Sketchley, hope to protect Florida facility administrators and staff from engaging in or unintentionally supporting the UPL.

“[The handbook] acts as both a marketing piece for nursing homes and ALF's as well as to give to prospective clients,” Mondschein said.  “Every state should have one so that the elder law attorneys in that state can use it to make their case on why a family should use an attorney for Medicaid Planning and why a nursing home should only refer to an attorney.”

Mondschein said that the Florida book can serve as a model for practitioners in other states.  “Since no one has ever done this before and with the rise of UPL in the Medicaid and VA Planning areas, the reader from another state can copy the basic format of the book and by researching his own state laws and bar rules, write a state-specific book as we did,” he said.  “It’s a new tool in the toolbox to fight UPL by educating the public, SNF, ALF facilities.”

The book explains to facility managers and staff:

  • what UPL is and how it happens;
  • how to protect, prevent and deter nursing home and assisted living facility residents from becoming victims;
  • how to protect themselves and their facility from becoming an unwitting participant in UPL activities; and
  • important actions they can take to fight UPL if they see it happening.

The handbook includes chapters on the possible legal consequences of negligent referral, examples of problems caused by non-lawyer Medicaid planners, trouble the nursing home can get in if nursing home employees know that a non-lawyer Medicaid planner is engaging in UPL, and possible consequences if a nursing home employee is paid a fee to refer Medicaid cases to a non-lawyer Medicaid planner.

The book also offers “Eight reasons to use an elder law attorney (and NOT a nonlawyer) to assist in qualifying a person for Medicaid benefits.”

To download the digital version of the handbook, go to www.miamieldercarelawyers.com and click the first download under “Free Books.”

September 25

Mother’s Transfer of House to Daughter Is Proper Medicaid Planning

A New Jersey appeals court holds that a mother's transfer of her house her daughter was appropriate as part of Medicaid planning and not a result of undue influence, but that the daughter is not entitled to attorney's fees. Estate of Guglielmelli (N.J. Super. Ct., App. Div., No. A-0375-17T1, Sept. 6, 2018).

Geraldine M. Guglielmelli lived with her daughter, Donna Mulford, who was her agent under a power of attorney. When Ms. Mulford could no longer care for her mother, Ms. Guglielmelli entered an assisted living facility. Ms. Mulford consulted an attorney about Medicaid planning, and on the attorney's advice Ms. Guglielmelli transferred her interest in her house to Ms. Mulford. Ms. Guglielmelli's other daughter, Denise Green, removed her from assisted living, and Ms. Guglielmelli hired another attorney to demand that Ms. Mulford produce accountings.

After Ms. Mulford produced the accountings, Ms. Guglielmelli filed exceptions, and the court held a hearing. The probate judge concluded that Ms. Guglielmelli voluntarily transferred her interest in her house to Ms. Mulford as part of Medicaid planning and awarded Ms. Mulford attorney's fees. Ms. Guglielmelli appealed.

The New Jersey Superior Court, Appellate Division, affirms in part, holding that the evidence supports the probate judge's decision regarding the transfer of the house. However, the court reverses the award of fees to Ms. Mulford, holding that there is no provision in state law for an award of fees in an accounting action.

For the full text of this decision, go to: https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a0375-17.pdf?cacheID=avKhyqT