Senior Planning Can Be a Criminal Act Hire a certified elder law attorney

Senior Planning Can Be a Criminal Act

Paying More for an Inferior Service – Don't Hire a Non-Attorney Medicaid Advisor

An elder care attorney is free to help you plan for Medicaid eligibility. I have helped thousands of my clients protect millions of dollars of assets from the ravages of long term care costs. The Supreme Court of New Jersey has indicated that most competent people would plan to qualify for Medicaid, and I can help you with that planning because I'm an attorney.

But make no mistake about it, Medicaid planning is the practice of law. In the past several years, a number of non-attorney Medicaid advisors have begun selling themselves as "senior planners." If senior planning is synonymous with Medicaid planning, then it is a criminal act. Specifically, senior planning would be the unauthorized practice of law, which is a fourth degree crime, punishable by up to 18 months in prison and a $10,000 fine.

I recently had a client tell me that a senior planning company advised her to transfer all of her assets to her disabled son, which is a common Medicaid planning technique. The problem is, when a non-attorney senior planning company provides this advice, the company is providing legal advice and since the advice is coming from a non-attorney, the advice is the unauthorized practice of law, a criminal act.

Of course, the flipside of providing legal advice is providing no advice at all. Many of these senior planning companies heavily solicit referrals from nursing homes and assisted living residences. You can bet that the senior planning company is more interested in protecting the referrals they receive from the nursing homes than they are with the individual customer.

These senior planning companies have the word "planning" in their names, but the truth is, the only planning they provide-or legally can provide-is waiting for you to spend all your money on the nursing home then processing your Medicaid application. That's not planning, that's a sin.

Many people could hire an elder care lawyer to help them save money and qualify for Medicaid benefits. Nursing homes heavily push the services of these companies. Ask yourself why? Because they know the senior planning companies will protect the interests of the nursing home, not the interests of the individual client.

In New Jersey, providing advice on strategies to become eligible for Medicaid is prohibited because it involves the unauthorized practice of law."
–New Jersey Division of Consumer Affairs, Consumer Brief on Medicaid Advisors

Helping a person qualify for Medicaid benefits has become a big business.

Seeing an opportunity to prey on people when they are vulnerable, a number of non-attorney Medicaid advisory companies claim to provide senior planning services to nursing home residents and their families. A quick Google search on the phrase "Medicaid planning NJ" brings you to their websites. The reality is, these companies are prohibited from providing Medicaid planning advice.

Senior planning companies would be committing a criminal act if they provided asset preservation advice to you. The Supreme Court of New Jersey has held that providing advice on strategies to qualify for Medicaid benefits or asset preservation is the practice of law. When a non-attorney provides Medicaid planning advice, they are committing a crime-the unauthorized practice of law.

"...providing advice on strategies to become eligible for Medicaid is not sanctioned and is the unauthorized practice of law." –New Jersey Supreme Court Committee on the Unauthorized Practice of Law

Think a Lawyer Is More Expensive than a Non-Attorney Medicaid Advisor? Think Again.

Ironically, in many instances, you will end up paying more for an inferior and illegal service.

Non-attorney Medicaid advisors typically charge around $6,500 to assist a customer. As an attorney, I will charge you-my client, not some customer-less than $6,000, and my fee is a one-time only flat fee that never increases.

Non-attorney Medicaid advisors will tell you that if the advice of an attorney is needed, they will charge you an additional fee. My fee never changes and cannot change by law because I am bound by the terms of my retainer agreement with you.

And not only do I assist you with applying for Medicaid for this one-time fee, I often develop strategies that save you tens of thousands, even hundreds of thousands, of dollars. I can develop such a plan because I am a lawyer, and I am legally permitted to practice law. Senior planning companies cannot provide Medicaid planning advice. Don't get less for paying more. Be a client, not a customer.

Hire me, not someone who cannot legally providing senior planning advice to you yet has the word "planning" right in their company's name. Hire an advocate who must keep your information confidential and your interests at the forefront, not a company that is eager to share your information with its referral source.

Be Wary of Referrals from Nursing Homes.

Nursing homes often refer residents to these non-attorney Medicaid advisors. The question you should ask yourself is-Does the nursing home making the referral have my interests at heart or its own interests? I have seen instances in which the referral was very aggressive, for instance, the family was told that they "must use" the advisor to which the nursing home referred them.

Unlike a lawyer who is responsible to maintain client confidentiality and advocate only for the client, a non-attorney advisor is not bound by a code of ethics. Moreover, the senior planning advisor is eager to share the status of his customer's Medicaid application with the nursing home. In some cases, the advisor provides written monthly reports to the nursing home as to the status of his customers' Medicaid applications, sharing confidential information with the nursing home.

"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." –New Jersey Supreme Court Committee on the Unauthorized Practice of Law.

One of the largest senior planning companies sells its services to nursing homes by providing a written monthly report to the nursing home's billing department as to the status of the resident's Medicaid application. For whose benefit is this report provided? Not the customer's. The Medicaid advisor is trying to appeal to its referral source, the nursing home, at the expense of the customer's interest in confidentiality.

Medicaid Is a Complicated Law

The Medicaid program is governed by a vast array of extremely complex laws. The Supreme Court of New Jersey has issued an opinion in which it stated that providing advice on strategies to qualify for Medicaid-that is, Medicaid planning-is legal advice.

The federal regulations governing the Medicaid program do permit a non-attorney to assist an applicant for Medicaid benefits in applying; however, the non-attorney cannot provide any advice on how to qualify for benefits. In other words, a non-attorney could help you complete the application and gather information for the application, such as bank statements, but the second the non-attorney provides any advice as to how to qualify for benefits-for instance, you should purchase a prepaid funeral for your wife or transfer the house to your name alone to avoid estate recovery-the non-attorney advisor is providing legal advice and committing a crime.

Ironically, some of these companies have the word "planning" right in their name. If you hired a company with the word "planning" in its name, it is reasonable to assume that the company will help you with your Medicaid planning needs. But it is literally illegal for a non-Attorney Medicaid advisor to offer Medicaid planning services.

Summing it up

Hiring a non-attorney Medicaid advisor is paying more and getting less. The problem is, as a consumer, you are probably confused and concerned about your family member who needs long-term care. You are doing what the nursing home told you to do---"Go see this senior planning company. They are the best!" You think you are doing right by your loved one using the service to which the nursing home referred you.

But the difference between the services of a non-attorney Medicaid advisor and my services is night and day.

When you hire me, you hire a professional. I am governed by a Code of Professional Conduct. I have liability insurance. I have a professional license. As an attorney, I can provide you with legal Medicaid planning advice that could save you thousands of dollars. I work only for you and have no obligation whatsoever to the nursing home.

A senior planning advisor is unlicensed. He very well may not have insurance. He is not governed by a code of ethics. A non-attorney Medicaid advisor cannot provide any Medicaid planning advice to you without committing a crime. The senior planning advisor depends on referrals he receives from the nursing home, so he knows on which side his bread is buttered.

Think about it this way. If your non-attorney Medicaid advisor provides you with terrible or no advice and loses thousands of dollars that could have been saved with sound legal advice, what are you going to do? Sue him? He'll close shop and open a new business the next day if he thinks you are threat to his livelihood.

He has no license, no code of conduct, and may not have insurance. He is a completely unregulated business and, in fact, is committing a crime the moment he provides you with any Medicaid planning advice. Good luck going after him for negligence.

If you have been injured by a non attorney Medicaid advisor, please contact me:

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