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Over one-third of Americans think Medicare will pay for their LTC costs

In my Guidebook on Medicaid I write about the Medicare myth. What is the Medicare myth? It’s the mistaken belief by people that Medicare will pay for their long-term care expenses in retirement. Until now, I haven’t seen a good report on how pervasive this myth is.

The AP-NORC Center at the University of Chicago conducted an extensive poll of adults over 40 on numerous long-term care issues. This poll quantifies how large the Medicare myth is in the US. Nearly 4 in 10 people surveyed mistakenly believe that Medicare will cover their long-term care costs.

Medicare has a very limited role in the payment of nursing home costs. It typically only covers a portion of a rehabilitation stay when followed by spending at least two midnights in the hospital before discharge to the nursing home. Medicare pays full price for 20 days of care and then a co-pay for the next 80 days that is typically shared with the patient or their Medicare supplement policy. After 100 days of coverage, Medicare abandons the patient financially and forces them to spenddown to Medicaid levels.

While Medicare does cover some cost of this 100 days of nursing home rehabilitation care, 100 days is not considered long-term. Therefore, Medicare does not cover long-term care. Yet over one-third of the population erroneously thinks that Medicare will take care of their long-term care costs. The Medicare myth prevails large.

The existence of the myth being so widespread lends itself to problems and opportunities.

The biggest problem that it creates is the lack of understanding why planning for long-term care is important. A lack of understanding leads to a lack of motivation. If a person thinks they’re covered, why would they need to do any planning? Planning could come in the form of buying long-term care insurance, but when over a third of the population does not see the insurance as being necessary, there’s no motivation to buy it when they’re healthy enough to qualify for it.

Most people only want the insurance when they realize they need it and realize they might use it someday, something many people don’t want to think about until they’ve already been diagnosed with something that makes them ineligible. When looking at long-term care insurance, the largest reason aside from price that people who want a policy do not have one is the strict underwriting criteria that makes them ineligible to get it.

If over one-third of the population is mistaken about Medicare’s ability to pay for long-term care, there’s a clear opportunity to educate. For anyone in the financial and legal world with solutions, this is a clear opportunity. Educating the public through outreach, public workshops, articles and the like can increase awareness and help change mindsets for such a large population segment that clearly should be planning. This will allow advisors who have valid solutions like long-term care insurance, hybrid long-term care annuities, and advanced Medicaid Planning solutions to begin to solve problems for a large segment of society that needs to be educated on the subject matter.

 

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Ohio Gets in Line with Medicaid Annuities (Finally!)

Ohio is always one of those states that always gets a lot of attention. Be it an election year where the fate of a nation rests on the turnout of the Eastern Appalachia states or in the sports world where everyone wonders what the [Insert Your Favorite or Least Favorite Ohio Sports Team Here] is going to do this season. When it comes to Medicaid planning in Ohio, this trend continues.

Ohio had been resistant to Medicaid safe harbor annuities in a rather unique way. The Ohio Department of Medicaid had attempted to extrapolate the post-eligibility community spouse transfer rules on to pre-eligibility Medicaid purchases. [Note: Post-eligibility transfer rules are the rules that require a community spouse to re-title jointly held assets into the community spouse’s name if those assets make up the Community Spouse Resource Allowance.] Because the community spouse’s resource allowance is limited to the maximum set by CMS each year ($119,220 for 2016), the state would limit the amount of an annuity a community spouse could purchase to the same amount. Purchases larger than that caused the applicant to receive a transfer penalty for any portion of the annuity purchase that exceeded that amount.

The Hughes opinion also decided that a state need not be named as a beneficiary of a community spouse’s annuity.

Ohio became the only state to put a lid on how much money you could put in a safe harbor annuity, violating its citizens’ rights by making it harder to be considered Medicaid eligible in Ohio than in any other state when purchasing an annuity. This was successfully challenged and taken all the way to the U.S. Supreme Court which let the favorable 2013 Sixth Circuit Ruling stand.[1]

The Hughes opinion also decided that a state need not be named as a beneficiary of a community spouse’s annuity. Shortly after the opinion was issued, other states started to take heed and change their rules. Michigan and Arkansas proactively adopted the Hughes ruling in their state Medicaid rules. But even with all of that, Ohio dragged its feet. The Ohio Department of Medicaid refused to change its rules and continued to penalize annuities; in some cases, even small annuities. This left families with no choice but to petition a federal judge in order to get their Medicaid benefits. A federal judge in Cincinnati even threatened to remove Ohio from the Medicaid system entirely if the state didn’t grant eligibility to applicants who had been improperly penalized from the purchase of a safe harbor annuity purchase. [2]

In a Medicaid Eligibility Procedure Letter dated February 26, 2016, the Ohio Department of Medicaid changed its rule to come into line with the part of the Hughes decision that explicitly stated there was no limit to the amount of pre-eligibility Medicaid safe harbor annuity purchases. Ohio is still requiring the state be named as a beneficiary in the correct position for both institutional spouse and community spouse annuity purchases.

Medicaid planners in Ohio thought annuities would be considered a viable planning tool after Hughes only to find out that using the annuity required additional litigation to get Medicaid eligibility approved. Many of them had to look at alternate planning options or risk the need for federal litigation if an annuity was involved. Medicaid planners in Ohio breathed a collective sigh of relief when the new rule change was announced. This will give Medicaid planners the same type of Medicaid planning tools available across the country.

To that, I say: It’s about time!

[1] Hughes v. McCarthy, 734 f.3d 473 (6th Cir. 2013).

[2] Wagner et al v. McCarthy, Case No. 1:14cv00648 (UD Dist. Ct. Ohio S. West Div.).

[3] Medicaid Eligibility Procedure Letter No. 112.

 

Third Edition of the Medicaid Planning Guidebook now available

medicaid guidebook-283The new edition of the Medicaid Planning Guidebook is available for sale. The best book on Mediciad Planning is now even better. After a full redesign and revision of the Guidebook, the Third Edition includes:

  • 25% more material
  • Over 1300 citations
  • Updated 2016 figures
  • State-specific rule exceptions
  • Expanded discussion of safe harbor annuities an VA benefit coordination
  • Numerous practice tips and practical examples

Purchase The Medicaid Planning Guidebook Here

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Obama Signs Bill That Helps Medicaid Planners

In August, President Obama signed into law the Notice of Observation Treatment and Implication for Care Eligibility Act (“NOTICE Act”).  This Act will greatly help families who transition from a hospital to a nursing home and are looking for Medicare payment while they can organize their affairs to move towards Medicaid qualification. The NOTICE Act requires hospitals to notify Medicare patients when they are receiving “observation care” but have not been formerly admitted to the hospital.

The bill is meant to help Medicare beneficiaries with a recurring problem.  Many face sticker shock after a hospital stay when they go to a skilled nursing facility (SNF) or rehab facility.  Medicare will not cover the tab of the post-hospital stay, which leaves the patient immediately subject to paying out-of-pocket at private pay rates.

To qualify for Medicare coverage in a post-hospital SNF stay, a Medicare beneficiary must first spend three (3) consecutive midnights as an admitted patient in a hospital; observation days don’t count towards that requirement.  It had become commonplace for people needing nursing home placement to seek a hospital stay first, so as to have the assistance of the hospital in locating an available nursing home bed and having Medicare pay for some or all of the first 100 days of care.

The rule providing for payment from Medicare often buys families time to sort through their finances and prepare for the high cost of long-term care.  Medicare typically will pay for the first 20 days of care and then cover a portion of care for the next 80 days.  This 100-day window will gives families 2 or 3 solid months to begin the daunting task of planning for how to pay for long-term care expenses.

Within the last few years, hospitals were using their ability to put someone in “observation” and then discharging them to the nursing home.  Most Medicare beneficiaries would not know at the time they are in the hospital whether they were admitted or on observation status.  After leaving the hospital, they would end up in rehab with no help from Medicare.  The sticker shock of getting the first month’s nursing home bill would cause many to panic, especially when they thought Medicare was going to pay for the services.

While this deceptive practice is not being eliminated by the NOTICE Act, the hospital is now required to put a patient and their family on notice that they are under observation and have not been formally admitted. This will let families know that they do not have a Medicare-funded grace period in the hospital and will be on the hook for costs after discharge immediately.  This also gives the family a head’s up that they need to contact a Certified Medicaid Planner™.

 

For a full copy of the NOTICE Act, click here.

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LPL pays big fine in Mass for using sham designation

As an advisor, you must truly be careful what you call yourself and the specialization you claim to have knowledge in. No more is this true in the area of professional designations not associated with a university or college degree. Advisors around the country have been using designations offed up by fly-by-night certification programs. These pay-for designations have virtually no checks and balances and basically give the certification to anyone who wants it – regardless of their actual knowledge level or sophistication in the subject matter.

Many state insurance and securities regulators have found these to be misleading and heavily used in the senior market. Often used by advisors to earn credibility with unknowing consumers to gain trust and sell insurance or investment products. In reaction to this, some states have actually pushed for and established regulations or limitations on which designations financial professionals may use and which are not suitable for use. One such state is Massachusetts as LPL recently found out the hard way.

Massachusetts rules in this area are not new. After a number of complaints in the last decade, the state decided that it needed to curb overuse of these designations because they were part of an overall “broader pattern of deceptive marketing to seniors.”[1] Under regulations established in 2007[2], the Secretary of the Commonwealth was given the authority to identify which accrediting bodies from which it would recognize designation. Shortly thereafter, on June 1, 2017 the Secretary recognized only those designations that are accredited with the American National Standards Institute (ANSI) and the National Coalition for Certifying Agencies (NCCA) as being acceptable for advisors to use.[3]

According to FINRA, of the hundreds of financial designations there are currently only seven (7) financial designations in the United States that have achieved this notable level of accreditation.[4] Accreditation is a difficult process for any certification to go through because it measures a program’s capabilities against very high standards. I know this intimately as I Chair the governing board that oversees one of those seven, the Certified Medicaid Planner™ designation.

The net result of having such high standards and for a state such as Massachusetts to limit use to only accredited designations is that it provides a vital consumer protection function so when the public sees an advisor is a Certified Medicaid Planner™ they can rely on the designation. The public can rest assured that it is an acceptable designation to the state because it has passed the high standards of the NCCA, and anyone awarded that designation understands Medicaid Planning issues thoroughly and have been fully vetted. Because, the NCCA has accredited the designation, advisors are allowed to use the CMP™ designation in Massachusetts and other states where they would otherwise not be able to use other unaccredited designations.

Despite these regulations being in effect for eight (8) years, that still has not stopped some from using inappropriate designations that Massachusetts deemed “bogus.”[5] A review of LPL marketing material by Massachusetts regulators found that there were 10 senior designations that might have violated state regulations, which gave rise to a regulatory action and a $250,000 fine levied against LPL last week.

Advisors should pay close attention to this case because the states are starting to take these issues seriously. In 2008, the North American Securities Administrators Association (NASAA) and the National Association of Insurance Commissioners (NAIC), adopted model rules that would prohibit the misleading use of senior-specific designations in connection with the sale of securities or insurance products, respectively, or related investment advice. Even the federal Consumer Financial Protection Bureau has this issue on their radar. In a report issued two years ago, they felt there was growing confusion and abuse by the misuse of unaccredited designations by advisors in the senior marketplace.[6]

An accredited certification is a great thing to have when you are trying to set yourself apart from others in the marketplace. Earning the certification offered by an accredited organization carries with it the weight of accreditation which is recognized as having met the very high standards of the accrediting agency. In an area as important as long-term care Medicaid planning which involves a wide array of professionals across multiple disciplines (attorneys, accountants, financial advisors, social workers, geriatric care managers, etc.), it was important for our board to set the highest standards and reach to meet the requirements for accreditation.   This was seen as the only credible way to unify these multiple disciplines under the CMP™ umbrella and have the proper checks and balances required by state regulators, such as those required by Massachusetts.

If you are interested in pursuing the CMP™ designation individually or having advisors in your company pursue the designation, I encourage you to visit the CMP™ Governing Board website. You don’t want to pursue any non-accredited designations that may cost you your licenses or cause you to end up paying huge fines like LPL did.

 

[1] Secretary of the Commonwealth of Massachusetts, Securities Division Report: DISCUSSION OF REASONS FOR, AND OBJECTIVES OF, NEW REGULATIONS REGARDING USE OF SENIOR DESIGNATIONS, p. 10.

[2] 950 CMR 12.204(2)(i) and 950 CMR 12.205(9)(c)(15)

[3] Secretary of the Commonwealth of Massachusetts, ORDER RECOGNIZING ACCREDITATION ORGANIZATION, signed May 30, 2007.

[4] FINRA list of Accredited Designations

[5] Newsham, Jack, Boston Globe, “LPL Financial settle title inflation case with Mass.”, July 14, 2015.

[6] Consumer Financial Protection Bureau Report: “Senior Designations for Financial Advisors: Reducing Consumer Confusion and Risk”, April 18, 2013.

 

 

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Attorney Disbarred for Botched Medicaid Plan & 4 Easy Steps to Avoid Losing Your Licenses

Every day I see the news traffic concerning long-term care Medicaid issues. Today I noticed an article about a Wisconsin attorney who was disbarred because she apparently was doing estate planning but didn’t understand Medicaid planning.

For years I have said that if you are a lawyer or financial advisor providing services to seniors and you don’t understand Medicaid planning, you’re at risk for malpractice.  Apparently, you’re even at risk of losing your licenses altogether.

The facts of this case, as reported by the Supreme Court of Wisconsin, should encourage every advisor and estate planner to learn Medicaid Planning.  In the opinion that led to the disbarment of Wisconsin attorney Lisa Laux, “the scope of Attorney Laux’s misconduct is staggering.” (Laux, is pronounced similar to the adjective “lax” which means to lack sufficient carefulness – which is exactly what it looks like Laux did.)

After a botched estate plan that included transferring assets to a so-called “Transition Trust,” Laux carried forward with a Medicaid eligibility plan that chose Spousal Refusal over Spousal Impoverishment protections.  Even the court weighed in that pursuing Spousal Impoverishment protections “would have been the preferable option given the size of the clients’ estate.”  Doing so caused a long delay in the client’s Medicaid eligibility and exposure of an additional $50,000 in care costs that the couple would not have otherwise had to cover.

If I were Donald Trump, I’d probably call her an “idiot.”  Ethical breaches aside, when you put her planning techniques under the microscope she clearly didn’t know what she was doing.

A lot of advisors that work in the senior marketplace don’t even understand the difference between Medicare and Medicaid, let alone the difference between long-term care Medicaid and Medicaid health insurance.  Many confuse the Medicaid gifting rules with the IRS gifting rules.  They just stick their head in the sand like the proverbial ostrich and figure that what they don’t know won’t hurt them.

Are you that kind of advisor?  If so, there’s help for you yet!

Here are my 4 easy steps to helping you get your head out of the sand:

  1. LEARN MEDICAID PLANNING. I’m all about making it easy to go from head in the sand to head-and-shoulders above the rest. I teach the most comprehensive course for Medicaid planning which is available online. And if you’re looking for a good summer read, try my textbook on Medicaid Planning – the largest textbook ever written on the subject. It’s not as much a “page-turner” as it is an “eye-opener.” It’s also chock full of practice tips that can really help improve the way you do business.

For more information about the Medicaid Planning Guidebook: click here

For more information about the Medicaid Planning Course: click here

  1. GET CERTIFIED. As Chairman of the Certified Medicaid Planner™ Governing Board, I would encourage everyone who reads this and wants to be considered legitimate as a Medicaid Planner to get certified. The CMP™ designation is the only one of its kind in the industry. It has full NCCA accreditation and increasingly becoming the gold standard for Medicaid Planning in the US.

For more information about how to become a CMP™: click here

  1. GET ASSISTANCE. As a Cav’s season ticket holder, I can tell you this: As good as LeBron is, he still needs 4 other guys on the court at all times providing him assistance in order to win a game. You don’t have to feel like you need to do it all on your own. Our mentoring and case support services can help you with your Medicaid planning cases in a cost-effective way.

For more information about mentoring services: click here

For more information about case support services: click here

  1. JUST DON’T DO IT. If you’re in the senior market as an estate planning attorney or financial advisor and you don’t want to do anything I’ve recommended here, then just get out. Go find some other way to make a living that doesn’t jeopardize your clients and their financial security. And that’ll be the best first step to avoiding jeopardizing your own licenses and your own ability to make a living. And you can easily avoid me writing another article like this making you the poster child for advisors who were too dense to get it right.

For more information about why you should quit while you’re ahead: click here to download the Laux opinion (Office of Lawyer Regulation v. Sarah E. K. Laux, Case 2014AP974-D, June 24, 2015)

 

Whatever you decide to do, don’t be a “Laux” advisor.

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Florida Supreme Court Goes After the Unauthorized Practice of Law

Florida Supreme Court Goes After the Unauthorized Practice of Law

The Florida Supreme Court (SC) just came out with an Advisory Opinion that is a must read. To download the 23-page opinion, click on the following link: http://medicaidplanning.org/fl-supreme-court-goes-after-the-unauthorized-practice-of-law.

I’ve been clear on my opinion of non-lawyers charging for advice when it comes to two specific areas of the law:

1) Estate Planning

2) Medicaid Planning

Many insurance agents and financial planners offer to draft living trusts where they not only give advice for a fee on what a client should do, but they actually draft the documents just as though they were attorneys.

Some in the industry call this a trust mill (agents who use estate planning to get clients in the door so they can make a few bucks on the trust document but then also sell the client a product). While there are a few states that allow this, most states frown on it; and now Florida has specifically outlawed it (I wouldn’t want to run a trust mill in FL now).

Medicaid Planning Prohibition

Besides the traditional trust-mill concept, many financial planners and insurance agents are charging a fee to give advice on “Medicaid Planning.” For those of you who are not familiar with “Medicaid Planning,” I suggest you go to www.medicaidplanning.org where you can read all about it.

Essentially, “Medicaid Planning” is when you help a senior client shift assets in order to quickly or even immediately qualify for financial aid for nursing home care. Anyone giving advice to clients over the age of 55 (fee-for-service or not) should learn “Medicaid Planning” (if you don’t, you are a lawsuit waiting to happen).

This subject is near and dear to my heart because The Wealth Preservation Institute has the only “Accredited” Medicaid Designation in any industry (legal, accounting, financial services, etc.). If you are not familiar with the Certified Medicaid Planner™ (CMP™) designation, you can learn more by going to www.cmpboard.org.

The Florida SC Advisory opinion specifically identified three services that non-attorneys will no longer be able to charge clients for.

1) Personal Service Contract (PSC). This is where you pay (as an exempt expense) typically a family member to help you with certain daily activities.

In many states, it’s commonplace for non-attorneys to charge a fee to draft a PSC.  In my mind, this has always been “legal work” and now the Florida SC agrees.

2) Non-attorneys are no longer able to prepare and execute Qualified Income Trusts (QIT) (a/k/a Miller Trusts). A QIT is used to shift what would be countable income for aid calculation.

3) Non-attorneys will no longer be able to render advice regarding the implementation of Florida law to obtain Medicaid benefits.

This is a big deal–because clients can use life insurance and Medicaid compliant annuities as tools to quickly or even immediately qualify for financial aid, there are thousands of insurance agents who tout that they can help clients with “Medicaid Planning.”

Of the thousands, many of them charge fees (flat fees or hourly fees) to give advice to clients on “Medicaid Planning” and/or charge them to set up QITs and/or PSCs.

The state of Florida says no more!

Will other states follow Florida when it comes to a formal prohibition on non-lawyers charging for advice for “Medicaid Planning” services?  I would think so, but only time will tell.

Selling Products–keep in mind that this prohibition focuses on charging for services.  We do not think there is anything wrong with an insurance agent selling a client a funeral trust policy or a Medicaid compliant annuity. Just don’t charge a fee for giving advice. Save that for the attorneys.

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Recorded Education Sessions

One of the best ways to learn this important subject matter is to view our 18 one-hour sessions taught by Medicaid Planning expert Michael Anthony, JD, CMP™ (author of The Medicaid Planning Guidebook).

To order access to these recorded sessions for $250, click here.

The sessions will cover:

SESSION 1: Introduction to Medicaid Planning

SESSION 2: Medicaid Program Overview

SESSION 3: Medicaid Eligibility Planning

SESSION 4: General Asset-Eligibility Rules

SESSION 5: Community Spouse Asset Rules

SESSION 6: Asset-Eligibility Strategies (PART I1)

SESSION 7: Asset-Eligibility Strategies (PART II)

SESSION 8: Divestments (Part I)

SESSION 9: Divestments (Part II)

SESSION 10: Trusts

SESSION 11: Annuities and Promissory Notes (Part I)

SESSION 12: Annuities and Promissory Notes (Part II)

SESSION 13: Income Eligibility

SESSION 14: Special Concerns for the Homestead and Family Farm

SESSION 15: Applying for Medicaid

SESSION 16: Post-Eligibility Issues, Advocacy Opportunities and Veteran’s Benefits

SESSION 17: Estate Recovery

SESSION 18: Practical Examples

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Medicaid State Law Summary Download

Thank you for your interest in downloading the 50-State Medicaid Estate Recovery Summary.

To download the summary in PDF, click on the following link:

50-State Medicaid Estate Recovery Summary (2015 Edition)

If this is your first visit to MedicaidPlanning.org, allow us to welcome you.  MedicaidPlanning.com was created to help advisors understand how critical it is to understand and help senior clients with proper long-term care Medicaid benefit planning.

What is Medicaid Planning?  It’s using existing laws to help clients avoid spending more for their long-term care than the law requires.

Most people and their advisors have no idea that, in order for most single seniors to receive financial assistance through Medicaid, they have to spend down a large amount of their “countable” assets.  Depending on state rules, this includes having to spend down CDs, money market accounts, stock and bond portfolios, annuities, IRAs/401(k)s/403(b)s, and many other assets.

Why do so many advisors feel intimidated by long-term care Medicaid planning?  What holds most advisors back from helping clients with Medicaid planning?  We find the two biggest reasons are the lack of quality education education and training and dearth of mentors to help make sure novice planners don’t make mistakes.

MedicaidPlanning.org offers both in an unmatched manner!  Our goal is to provide you with comprehensive tools to help you go from “I don’t know” to “I’m a pro” in the shortest span of time possible.

Comprehensive Education—Advisors of all kinds can be educated on compliant Medicaid planning by taking the Medicaid Planning Course (click here to learn more). This course is the ONLY thorough course of its kind in the industry and is taught by the author of the most comprehensive book ever written on this subject matter, The Medicaid Planning Guidebook (click here to learn more).

To learn more about the 17 one-hour recorded educational sessions, please click here.

Quality Support/Mentoring—Most advisors are afraid to help clients with Medicaid planning (even if they know the subject matter) because they do not have the support of an expert who really knows the subject matter. Our program not only educates advisors, but we have support available to help advisors with case design and overall practice mentoring. Click here to learn more about the unique support our team provides.

MedicaidPlanning.org was also created to help advisors market themselves as Medicaid planners.  Helping clients with Medicaid planning is one of the best ways to grow your legal, insurance, financial planning, or accounting business. Medicaid planning is extremely motivational for clients who, if they do not take your advice, will simply be handing over their money to nursing homes instead of preserving some portion of it for their heirs.

We invite you to surf this site to learn more about the unique offerings we have for advisors as well as caregivers.  If you have any questions, please feel free to e-mail them to team@medicaidplanning.org.

If you would like to fill out a request-for-more-information form so you can learn more about the benefits of becoming a Medicaid planner and working with MedicaidPlanning.org, please click here.

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2015 Medicaid State Law Summary

Download the 300+ Page 2015 Medicaid State Law Summary

Features & Benefits

This is the best Medicaid state law desk reference guide in the industry today
Quickly look up the statutes in any state
Quickly blook up the phone number and e-mail address of each state Medicaid agency
Quickly look up estate recovery, spousal recovery, liens, partnership programs, hardship waiver sections to each state statute
If you are giving advice to clients over 55 and do not have this desk reference guide at your disposal, you are making a tremendous mistake!

Fill in the following to receive the 50-state law summary

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FL Supreme Court Goes after the Unauthorized Practice of Law

Thank you for your interest in reading the FL SC Advisory Opinion wherein it makes illegal the drafting of certain documents (specifically Medicaid Planning) by non-attorneys.

Medicaid planning is one of the least understood subject matters in the legal, accounting, financial services, and insurance industries. This is unfortunate since giving seniors with a net worth of less than $1 million advice without understanding Medicaid planning can lead to a financial catastrophe.

If you want to learn more about Medicaid planning, simply surf around this site.

If you are not familiar with the Certified Medicaid Planner™ (CMP™) designation, you can learn more by going to www.cmpboard.org.

To download the FL SC Advisory Opinion in PDF, click on the following link:

http://www.thewpi.org/pdf/FL.SC.unathorized.practice.of.law.pdf