The Committee on the Unauthorized Practice of Law (UPL) of the New Jersey Supreme Court has issued UPL Opinion 53 Medicaid Advisors 5 16 16. It concluded that non-attorney Medicaid application preparers, Medicaid advisors and assistors would be engaging in impermissible UPL when they give 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, or the like.”
UPL can be very serious; under N.J.S.A. 2C:21-22, it is a crime of the third or fourth degree depending on the circumstances, and under N.J.S.A. 2C:21-22a, it can be the basis of a civil suit resulting in three times the value of all costs incurred by the victim as a result of the defendant’s criminal activity, including any fees paid to the defendant for services, costs incurred for attorneys’ fees, court costs and any out-of-pocket losses. Criminal prosecution is not required for civil action under N.J.S.A. 2C:21-22a.
Why is this an issue? Allowing somebody to just assemble and file your application without providing you with the important legal analysis could deprive you of necessary asset and family protection. And as a consumer/applicant, you may not even know just what favorable legal options you’re missing out on.
As you can tell if you’ve been following this blog the last few years, applying for Medicaid to pay for nursing home care for your mother with Alzheimers is hardly a walk in the park. It’s not just a matter of compiling a 5-year stack of account records and sending them in. There can be legal problems such as timing; lack of authority to access information; ownership of assets; providing the sufficient proof to meet the applicant’s legal burden; legal authority to transfer assets; impact of transfers on other creditors; or interpretation of a law as it applies to the specific situation. And there are opportunities to protect the other family members, but those require legal interpretation and strategy. Over the last few years, I encountered several really sad cases where assets could have been transferred to a child under 21 or a disabled child or a spouse. Instead, by relying on the advice of a non-attorney, the spouse of the applicant paid the nursing home hundreds of thousands of dollars before they learned –from me, as an elder law attorney — that they could have become eligible for Medicaid a few years prior.
Elder care is a team effort. Allowing somebody to just assemble and file your application without providing you with the important legal analysis could deprive you of necessary asset and family protection. And as a consumer/applicant, you may not even know just what advice you’re missing out on. Attorneys, accountants, social workers and other professionals should work together for their elderly clients, know the boundaries of the advice they give, and always put the client first.
Call us for advice and representations on Medicaid applications, appeals, guardianship and protective arrangements … 732-382-6070