The FLORIDA BAR Re ADVISORY OPINION—MEDICAID PLANNING ACTIVITIES BY NONLAWYERS
183 So. 3d 276
| Fla. | 2015Background
- The Florida Bar Elder Law Section’s UPL Subcommittee asked the Standing Committee on the Unlicensed Practice of Law for an advisory opinion whether nonlawyers may: (1) draft personal service contracts; (2) prepare/execute Qualified Income Trusts (QITs); or (3) render legal advice implementing Florida law to obtain Medicaid benefits. Preparation of the Medicaid application itself was excluded (federal law permits nonlawyer assistance).
- The Standing Committee held a public hearing, received written and live testimony (largely from elder-law attorneys), and filed a revised proposed advisory opinion, which the Florida Supreme Court approved and adopted as an order.
- Testimony documented concrete harms from nonlawyer Medicaid planners: denial of benefits, tax liabilities, fraud exposure, and financial exploitation. Many nonlawyer planners are unregulated and sometimes have disciplinary histories.
- The Committee evaluated prior Florida precedent on nonlawyer preparation of legal instruments and form kits (Brumbaugh, Living Trust, Raymond James, American Senior Citizens Alliance) and applied Sperry’s functional test for practice of law.
- The Committee concluded certain Medicaid-planning activities (drafting personal service contracts; determining, preparing, funding, executing QITs; and giving legal strategy advice) are the unlicensed practice of law, while DCF staff assistance and nonlawyer completion of the Medicaid application remain authorized by statute/regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) May nonlawyers draft personal service contracts used to "spend down" for Medicaid? | Nonlawyers claimed they may provide these services and sell forms/kits to meet demand. | Petitioners/attorneys argued drafting such contracts affects legal rights and requires legal skill; harms have occurred from improper drafting. | Drafting personal service contracts by nonlawyers = unlicensed practice of law. |
| 2) May nonlawyers determine need for, prepare, execute, fund, or gather info for Qualified Income Trusts? | Nonlawyers argued they can sell and complete QIT forms (analogous to allowed form-kit activity). | Petitioners argued QITs are legal instruments affecting rights; errors have denied benefits; nonlawyers are unregulated. | Determining need for, preparing, executing, funding, and gathering info for QITs by nonlawyers = unlicensed practice of law. |
| 3) May nonlawyers render legal advice about implementing Florida law to obtain Medicaid benefits (strategy/advice)? | Nonlawyers provide counseling on strategies to qualify for Medicaid; some claimed attorney oversight or use of attorneys to prepare documents. | Petitioners argued applying facts to complex federal/state Medicaid law and advising strategy requires legal skill and falls within Sperry. | Rendering legal advice on implementing law to obtain Medicaid benefits (including advising on strategies) = unlicensed practice of law. |
| 4) Are there permissible exceptions (Medicaid application, DCF staff, form kits/attorney involvement)? | Nonlawyers relied on Brumbaugh to justify selling kits and completing forms; some claimed attorneys draft docs for them. | Petitioners warned that internet-era reliance, lack of regulation, and Brumbaugh’s limits make kit-sales dangerous; mere attorney drafting for a company is insufficient unless independent attorney-client relationship exists. | Preparing the Medicaid application and DCF staff assistance are permitted; selling PSC/QIT kits is not allowed; companies cannot avoid UPL by routing attorney review through the company — attorney must have independent client relationship and direct payment. |
Key Cases Cited
- The Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962) (functional test for what constitutes practice of law — advice affecting important legal rights requires legal skill)
- The Florida Bar re: Advisory Opinion—Nonlawyer Preparation of Living Trusts, 613 So. 2d 426 (Fla. 1992) (assembly/preparation of living trusts constitutes practice of law; limited exception for gathering information in regulated contexts)
- The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978) (selling legal kits and completing forms with client-provided information may be permitted, but giving advice or inducing reliance is UPL)
- The Florida Bar v. American Senior Citizens Alliance, Inc., 689 So. 2d 255 (Fla. 1997) (narrow interpretation of “gathering necessary information”; condemned life-trust sellers who induced reliance)
- Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968) (regulated brokers may solicit specific customer asset facts as part of licensed activity)
- The Florida Bar v. Davide, 702 So. 2d 184 (Fla. 1997) (advertising nonlawyers as specialists in legal areas may constitute UPL)