Are Non-Attorney Medicaid Advisors Engaging in the Unlicensed Practice of Law?

Practicing law without a license in the State of New Jersey is a crime, subject to prosecution.   On May 16, 2016, New Jersey’s Committee on the Unauthorized Practice of Law, which is appointed by its Supreme Court, issued an opinion concerning permissible and impermissible activities of non-lawyer Medicaid advisors, including so-called “Application Assistors.” The Committee held that only a lawyer may provide legal advice on issues such as strategies for Medicaid eligibility, including provisions of wills and powers of attorney; on the need for guardianships and the authority to transfer assets; on nursing home laws; on transfers of property; on the impact of marriage and divorce; and on estate administration and the elective share.

The Committee held that non-lawyer Medicaid advisors can assist an applicant in completing an application for Medicaid, but little if any else.

We have reviewed cases where non-attorney Medicaid Advisors have prepared powers of attorney and provided other legal advice in violation of the below opinion.  Additionally, we have been advised of several cases in which the proposed Medicaid applicant died before the Medicaid application was filed.  Subsequently, the Medicaid Advisor company refused to issue any refund to the family.  If the Medicaid application was not filed, pursuant to the Medicaid Advisor opinion, there was nothing else the company could have billed for.

We urge you to be cautious when retaining the services of any senior advisor.  You want to be sure of that the senior advisor is adequately trained, request references when appropriate, make sure that there are no potential conflicts of interests, the company or individual is properly licensed, and is legally able to provide the services that were allegedly contracted for.

You can read the Unauthorized Practice of Law Opinionhere.

About Jerry

Jerold E. Rothkoff, a practicing New Jersey and Pennsylvania attorney, is the Principal of the Rothkoff Law Group, an elder care law firm. Jerry dedicates his practice to serving clients in the areas of life care planning, long-term care planning, Medicaid & VA benefits, and advocacy for the elderly and disabled. He is past President of the NJ Chapter of the National Academy of Elder Law Attorneys, former chair of the elder law section of the NJ State Bar Association, and past President of the Life Care Planning Law Firm Association. Jerry continues to be an outspoken advocate for the rights of the elderly and disabled. He writes for and gives presentations regularly to attorneys and other professionals about legal issues related to seniors and those with disabilities. Jerry’s community activities include the Twilight Wish Foundation, the Delaware Valley Stroke Council, the Alzheimer’s Association, as well as numerous other advocacy groups. When not in the office, Jerry spends time with his wife, Erica, and their five children, eighteen-year old identical twin girls, Liza and Julia, fifteen-year old fraternal twin boys, Evan and Gregory, and six-year old Aitan.

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