I just had a family ask me a good question; what is the difference between a Medicaid specialist and an Elder Law Attorney? I answered “everything”. Elder Law attorneys are licensed, trained professionals who have fiduciary responsibilities to their clients. They are accountable for their actions to the Supreme Court of the state in which they are licensed. Elder Law attorneys are required to carry malpractice insurance in case they make a mistake that hurts one of their clients. All attorneys are required to continue their education throughout their career. In Delaware, attorneys must earn 24 continuing education credits every two years.
The practice of Elder Law involves, among other things, Medicaid applications, Medicaid asset protection, estate planning, and estate administration. Businesses that hold themselves out as Medicaid specialists or planners are on the fringes of this practice space. The specialist is authorized by federal statute to help seniors fill out the application for Medicaid and guide them through the application process only. 42 CFR §§435.907 and 435.908. These individuals are not attorneys, are not licensed, have little to no formal training owe no fiduciary duties to their customers, and are accountable to no one if something goes wrong.[1] They do not carry malpractice liability insurance.
A Medicaid planning business that limits its services to assisting seniors with their application and guiding them through the process is fine. The challenge is that most such services do not always limit themselves to these activities. They offer advice on positioning assets and income to qualify financially for Medicaid. They produce trust documents for their customer to sign. In doing so, the planner is directly or indirectly giving the opinion that the trust document is valid under state law and will carry out its intended purpose.[2] These activities are arguably the practice of law without a license. Individuals practicing law without a license, or those abetting them, may be subject to civil and criminal penalties. Buyer beware is the precautionary adage here.
[1] An exception to this is the “Medicaid Application Assister”. These are individuals who are certified by the state Medicaid office to help applicants through the application process. These assisters are loosely supervised by the office regarding application procedures and confidentiality. They are not permitted to charge a fee.
[2] These trust documents are often pirated from the work of licensed Elder Law attorneys. Some Medicaid specialists say they partner with Elder Law attorneys to produce needed documents. This is misleading and often just plain false. An Elder Law attorney is not going to produce documents for non-lawyers or individuals who are not their specific client. To do so is arguably abetting the unauthorized practice of law.