Lee A. Rosenthal, P.A.

Attorney and Counselor at Law 631 U.S. Highway One- Suite 302 North Palm Beach. Florida 33408

Phone (561) 799-5290 Fax (561) 799-9987

www.leearosenthal.com leearosenthal@Jellsouthnet

January 31,2013

RE: Unauthorized Practice ofLaw in Medicaid Planning Situations

To Whom It May Concern:

The following represents my clear recollection of incidents that occurred that were to the detriment of clients, that found their origin through the unauthorized practice of law in the Medicaid planning area

CaseNo.l

A developmentally disabled man received a large settlement through the office of a prominent attorney due to the loss of his brother, who had been his sole fiduciary, prior to his death. Subsequent to the death of his brother, M.R. began receiving payments of the sum of $380 per month in June, 1985, which payments would continue until June 15, 2015. In addition to the monthly payments, lump sum payments were made from 1990 through 2010.

These moneys were paid to a relative ("Auntie'') who took responsibility for the care of M.R. Unfortunately, due to the infirmities of age, the relative became unable to care for M.R. and the relative's daughter took over.

However, M.R presented behavioral problems and other relatives who had no interest in his care complained to M.R. that his "Auntie", and now, her daughter, had been keeping all ofhis money. As a result, the easily susceptible M.R. then began demanding his money from Auntie and when she did give him money, he gave it all to the other family members who used it solely for their own benefit In fact, the moneys received by "Auntie" and her daughter, were used for the care and benefit ofM.R.

In 2008, after "Auntie" had developed a full blown case of Alzheimer's, M.R. was hospitalized then transferred to an assisted living facility for rehabilitation. Due to the fact that he could not get along with other residents and insisted on smoking cigarettes in prohibited areas, he was transferred to a local skilled nursing facility. The skilled nursing facility retained the services of an elder planning organization (with no attorney) to provide Medicaid planning for M.R, due to the high

1

Filing # 9230902 Electronically Filed 01/16/2014 11:35:31 AM

RECEIVED, 1/16/2014 11:40:22, John A. Tomasino, Clerk, Supreme Court

http:www.leearosenthal.com

cost ofhis institutional care. The elder planning company hired a private investigator since they did not know where M.R had lived and ascertained that his closest next of kin was the "Auntie's" daughter. They took it upon themselves to set up a personal services agreement in favor of "Auntie's" daughter, which would allow M.R to qualify for Medicaid.

The problem was, subsequent to their learning of the lwnp swn payment, other family members found a newly acquired interest in the welfare of M.R The other family members now accommodated M.R by allowing him to live in a shack, without air conditioning, in back of one of the other relative's home. Another relative procured a power of attorney in favor of himself as attorney in fact, and used it to receive the Social Security benefits due MR

The other relatives so interfered with any care giving services that M.R no longer wished to live with the "Auntie's" daughter and she was prohibited from visiting M.R at his new residence. Thus the care-giving services which were promised in the personal services contract could not be rendered to M.R

Furthermore, it should be noted on June 15, 2015, an additional lump sum payment of $227,411 would be due M.R M.R was no longer living in any nursing facility and did not require institutional Medicaid (ICP). The appropriate Medicaid planning strategy in this instance would have been to deposit any funds into a pooled trust. A guardianship was eventually established and that guardianship will need to establish a pooled trust to insure that the funds used for M.R would be supplemental to his other expenses, therefore retaining his ability to receive Social Security Disability benefits as well as retaining his ability to qualify for Medicaid.

The actions of the elder planning organization jeopardized M.R's ability to get his Social Security Disability, to get his Medicaid, and allowed much of his money to be squandered until we were finally able to establish a guardianship.

Case2

I have also had another case in which a personal services contract was drafted by an elder law service, and the contract was rejected by Medicaid. I had to redraft the contract properly, but during the interim period, the client received no Medicaid benefits, and those benefits were lost for approximately three months, costing the client many thousands ofdollars.

Case3

I have had several individuals in my office for estate planning and other services, who had previously utilized the services of an elder planning company recommended by a local skilled nursing facility. The folks at the skilled nursing facility are told that Elder law attorneys are charging high fees for services that this company can provide for free. The Medicaid planning service offered involves the purchase of annuities. I have explained to clients that the named

2

beneficiary of any annuity can be the spouse, ifthe spouse survives the patient. However, what the unsuspecting clients did not know, is that without a spouse, the next named beneficiary must be Medicaid. Thus the savings in fees realized by the clients is more than offset by the ineffectiveness ofan annuity as a vehicle to help preserve assets.

Case4

Patient had dementia and resided at an assisted living/dementia facility. Patient's assets were depleting at an alarming rate and the patient's stepdaughter had an elder planning service recommended by the assisted living facility. The elder law service procured an irrevocable trust form, improperly executed it, and placed the patient's funds in that "trust" to qualify him for V .A. benefits. However, this strategy failed to allow the patient to qualify for Medicaid diversion benefits and actually caused a lengthy disqualification for Medicaid benefits.

Very truly yours,

Lee A. Rosenthal, Esquire

LAR/gv

cc: Lori Holcom, Esq. Jdftey Picker, Esq. John R. Frazier, J.D., LL.M. Twyla Sketchley, Esq.

3

DELZER, COULTER & BELL, P A ATTORNEYS AT LAW

ESTABLISHED 1960

WAYNE R. COULTER 7920 U.S. HIGHWAY 19 Board Certified, Wills, Trusts & Estates PoRT RICHEY, FLORIDA 34668 REBEccA C. BELL, LL.M.IN ELDER LAW (727) 848-3404 Board Certified, Elder Law Fax: (727) 847-5344 HARVEY V. DELZER E-mail: info@delzercoulter.com

Retired

February 1, 2013

Via email (lholcomb@flabar.org) & US Mail UPL Department The Florida Bar Attn: Lori Holcomb 651 East Jefferson Street Tallahassee, FL 32399-2300

Re: Written Testimony for UPL hearing in Tampa, Florida on Feb. 22, 2013

Dear Ms. Holcomb:

This letter will serve as my written testimony regarding the unlicensed practice of law by nonattorney Medicaid planners in Florida for the public hearing scheduled on February 22, 2013.

I am a Florida Bar Board Certified Elder Law Attorney and also hold a LL.M. degree in Elder Law. I have practiced in the area ofestate planning, trust and estate administration and elder law since I began the practice of law in 2000. I have had an increasing number ofclients that have been harmed due to ill-advisement by a non-attorney Medicaid planner. Below are samples of my clients' stories illustrating such harm.

A common practice with non-attorney Medicaid planners, and a practice performed with this particular client ofmine, is for the non-attorney Medicaid planner to retain an attorney to prepare a Qualified Income Trust. A Qualified Income Trust is necessary when a Medicaid applicant's income exceeds the Medicaid income cap but is not sufficient to pay the nursing home costs. The attorney in this case practiced in a different city, never met the client, was not present at the trust execution and certainly did not advise regarding the funding or administration ofthe trust. .In order to achieve Medicaid eligibility, the Qualified Income Trust must not only be executed but properly funded. In my client's case, the non-attorney Medicaid planner incorrectly advised the client regarding the funding ofthe Qualified Income Trust and, as a result, my client was unable to obtain Medicaid until I was able to properly advise her regarding the funding ofthe trust. The client had an approximate $7,000 bill from the nursing home and no funds to pay this bill. The same non-attorney Medicaid planner in this case also advised the client's durable power of attorney to transfer client's funds to herself, which also creates Medicaid disqualification. For another example I am using the following excerpt from a UPL claim against Elder Planning Alliance ("EPA"), which my client filed after retaining my services. EPA collected a nonrefundable $5,000 from the Medicaid applicant without performing any services. "While my wife and I were visiting my mother in Florida, we met with Mr. Schell (ofElder Planning Alliance) on October 13, 2010 to determine whether he could help my mother since she

mailto:lholcomb@flabar.orgmailto:info@delzercoulter.com

Page2

was ,:1ow in a nursing home and he had refused to return any ofher money. He did not have a file for her or any ofher information. We had brought with us as many ofthe documents he requested as we could locate. He looked at information on her current assets, including statements on four annuities that she owned. His recommendation was to execute a Personal Service Contract for $208,735.00. He arrived at this figure by calculating 25 hours a week at $35/hour for her life expectancy of6.17 years, despite our living out oftown. He told us that he has an attorney that he works with who fmalizes the calculation of the hours per week that my wife and I would be providing care for my mother. We told him that my mother and we thought he was an attorney. He said, no, but he works very closely with one, whose fees are nominal. He also·recommended that we sell my mother's existing annuities and purchase new annuities with a different company, creating a trust for owning the annuities with myself serving as trustee. We questioned why my mother should sell her existing annuities and buy new annuities, especially at her age of 86, which paid large sales commission to Mr. Schell."

I have also attached as Exhibit A the Elder Planning Alliance Client Agreement. Please note item #2 on page 2 ofthe Agreement: Elder Planning Alliance is responsible for "(e)xplain(ing) the procedures and strategies for preserving assets and overcoming possible gifting mistakes." Additionally, their website (www.elderplanningall.com) touts, ''Elder Planning Alliance will form a complete, structured, and strategic estate plan to protect the assets ofyou and/or your loved ones." Such a role of a non-attorney Medicaid planner is clearly the unlicensed practice of law.

Lastly, I raise the common practice ofnon-attorney Medicaid planners in liquidating annuities and IRAs without proper tax advice. Often the liquidation ofannuities and other qualified retirement accounts is done in conjunction with purchasing new annuities, which ofcourse generates commissions for the non-attorney Medicaid planner. This was the proposal mentioned above by Elder Planning Alliance. The sale of financial products is of course not the practice of law; however, when it is sold in the context ofadvising a person how to meet Medicaid eligibility laws, it is the unlicensed practice of law. Vulnerable individuals scared by the thought of nursing home bills impoverishing them are ready to listen to any individuals promising Medicaid eligibility. It is not until they receive 1099s at the end ofthe year do they realize the large amount of income tax they owe as a result ofthe non-attorney Medicaid planner's actions. I have had at least one client in the past year who followed the instruction ofa non-attorney Medicaid planner in liquidating their IRA. Medicaid laws, however, allow a person to own an IRA and still qualify for Medicaid.

In order to protect vulnerable consumers who desperately need ethical and professional legal advice when facing long term care crises in their families, I urge the Florida Bar to issue an Advisory Opinion detailing what constitutes the unlicensed practice oflaw within this practice area.

Thank you for your attention to this important and critical matter.

Sincerely,

/s/ Rebecca C. Bell

http:www.elderplanningall.comhttp:208,735.00

Exhibit A

Client Agreement

Elder Plannjng Alliance is committed to providing the best service possible for its clients. To help fulfill this goal. the following guidelines have been developed. Please read them carefully and sign/ date at the bottom signifYing that you agree with t11e stated responsibilities of both Elder Planning AJJiance and you. the client · · .

Tltis is an agreement between Elder Planning AIHance ancr.t: . ·- o hire Elder Planning Alliance to p1ace.'1;. .. ·~ereafter referred to as .

. :.~

Elde1· Planning Alliance sbnll be responsible for:

1) Treating each client in a professional and courteous manner and being available to the client to answer questions relating to the Meclicaid application process.

2) Explain the procedures and strategies for preserving assets and overcoming possible gifting mistakes. ·

3) Following through with all necessaty papeiWorlc as required by Medicaid d_uring the application process.

4) Assisting the client with organizing all necessary paperirorlc as required by Medicaid application process.

5) Being prompt in all services and in the return ofphone calls. 6) Attending all appointments with the Department of Children & Family (DCF)

caseworker. 7) Following through with un:fimsbed or open items as requested by the Department of

Children &Families (DCF) during the Medicaid application process. B) Keeping the nursing l10me or assisted living facility (ALF) completely infonned of the

Medicaid application status and contacting all responsible parties when t11e application bas been approved.

9) Making arrangements for changing the designated representative and associated mailing address to a family member or designated Power of Attorney when the approval process has been completed.

Elder Planning AJliance will handle all phases of the Medicaid process. At no time will nn insurance agent, brolcer, banker, or attorney talce over part of the process for any reason.

\

It is the responsibility of the client to produce all necessary documentation and to inform Elde1· Planning Alliance ofany delays and the reason thereof. Elder Planning Alliance is not responsible for cases tbnt n•·e closed or denied due to Jaclc of dnc diligence on the part of the clienf. If a c:t.se is closed bnsed on a lack of due diligence on the clients pm-t, a new fee based on current prices at time of denial may be required.

Bp Signiltg below I acknowledge l'eceipt o{mJ' copv ofthe client agreemelli

(Signa

(Print Nairie) (Date)

(Signature ofElder Planning Alliance Representative)

e,·c:,\L SGk-e/\\ (PrintNnme) · · ·

:J-1 ~-1D (Date)

EPA Oicnt Agreemcnt-2109

~---------------------,~-

Fw: Medicaid Filing Service bruce futhey to: Lholcomb@flabar.org 02/01/2013 09:34AM Cc: "Jpicker@flabar.org" Please respond to bruce futhey

--- Forwarded Message --From: bruce futhey To: "debbyrober@gmail.com" Sent: Thursday, January 31, 2013 10:41 AM Subject: Fw: Medicaid Filing Service

FYI -- Forwarded Message ----From: bruce futhey To: "amanda@wolfelderlaw.com" Sent: Thursday, January 31, 2013 10:29 AM Subject: Medicaid Filing Service

Good morning Amanda, Please feel free to edit as needed, or contact me for clarification. You may share this with anyone you choose. For almost 13 years my mother, Lucy Futhey, has been a resident of University Village (UV), in Tampa, Florida. In July of 2012 she was transferred from assisted living to the skilled nursing center due to advancing age-related issues. After a period of time, when it became obvious that this transfer was to be permanent, I was contacted by the Social Services of UV and advised that I would need to get my mother qualified for Medicaid. This was the first I had ever heard about Medicaid; my mother's medical care up to now had always been covered by Medicare and TriCare For Life. I was informed that Medicare only covered her if her admission to skilled nursing had been proceeded by a 3 day hospital stay... it had not been. The Social Services office suggested that I engage a company, Medicaid Filing Service (MFS), of Clearwater FL. I called MFS and spoke to the owner, Charlotte Oliver, who gave me a brief introduction on how Medicaid worked, and what MFS could do to help. She would get a new, up-dated POA, set up a qualified income trust account, file all needed documents with the state, and have the attorneys' firm review and file everything with the court...whatever that means. It all sounded reasonable until she explained that her fee was $3900, plus another $1000 for the attorney's firm to handle "filing some papers with the court". To say the least, I was amazed, but also felt I had no other choice; I live in Seattle, and had no idea how to negotiate the Florida state regulations. Ms Oliver created a sense of great urgency, stating that "we must hurry to protect mom's assets" (she had none to speak of). "Unless every aspect of this complex process is done exactly as required, the state will throw it back, losing valuable time and money. This is something few laymen know how to do". With great reluctance, I agreed to engage her services and said I'd send a check in that day's mail. "Oh, no", protested Ms Oliver. "We can't get started without payment in full today. You should wire transfer the full amount to my bank right now". I'll admit that set off some alarm bells, but apparently not loudly enough to dissuade my from going ahead and complying with her request. This was on a Friday afternoon. I spent the leisure

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of my weekend repenting the decision I made in haste, and on the following Monday morning, called MFS office and spoke to Melissa, requesting that they halt all efforts on my mother's behalf, and asking that Charlotte return my call. Later that day she did. I explained that I had spoken with my sister, and that we wanted to reconsider our options, and requested that she take no further actions. Ms Oliver replied that she has a no-refund policy, and that no refund would be forthcoming. I most adamantly replied that was completely unacceptable, and that the refund be tendered with all the urgency it had been demanded. She only promised "to look into it". The next day, a Tuesday, Ms Oliver called to say that having "looked into it", she would grant me a $2900 refund; retaining $1000 for "work done in my mother's behalf". I again most adamantly stated that this was completely unacceptable, that MFS had no financial data or other information with which to accomplish anything of substance, that they did not have a signed agreement form me, (I have mom's unlimited POA), and that it had been the weekend, and even at $100 an hour it was inconceivable that anyone could have found 10 hours of work to be done. Ms Oliver said she'd "think about it". She later in the day emailed that she would retain "only" $500, and send me a check for the difference, which she did a week or so later. The above events occurred in the last week of August, and the first week of Sept, 2012. In September I visited my mother for her 95th birthday, and while talking with the nursing center bookkeeper, she casually mentioned that she would be happy to initiate the Medicaid application process ... for free. "We do it all the time for our residents, it takes about an hour". I about fell out of my chair. The bookkeeper said that all she would need is a current POA and for me to set up a qualified income trust. I engaged the services of Wolf Elder Law to draw up a durable POA, a Medical Surogate and to provide trust instructions to my bank. Finally, with all these issues out of the way, I had time to contemplate my experiences with Medicaid Filing Service. I feel that I was hustled shamelessly, taken advantage of by someone who had quickly sized me up as a vulnerable layman at a real disadvantage. Ms Oliver swooped in with a sense of urgent crises, and an expertise that only she had for navigating the rocky shoals of medicaid bureaucracy. By now, I had placed my trust in the nursing center's bookkeeper, a trust well placed as mom's application sailed through the process without a hitch. Footnote: As a private citizen, I intend to file reports with such internet consumer alert sites as RipOffReport.com, and others, and with the Better Business Bureau, the FL Attorney General's Office, and any other agency that may have interest in, or oversight of, this industry. Inasmuch as Florida is rightly proud to have such progressive and comprehensive elder law statutes on the books to protect vulnerable populations, I find it amazing that such practices as I have detailed above continue to be tolerated. Bruce Futhey 1526 NE 143 St. #204 Seattle, WA 98125 206 465 4510 brucefuthey@yahoo. com

http:RipOffReport.com

UPL hearing in Tampa Florida 02/22/2013 Michael Fowler to: lholcomb@flabar.org 02/01/2013 03:19PM Cc: ''tsketchley@gmail.com", "John@attypip.com"

UPL Department The Florida Bar Attn: Lori Holcomb, Esquire 651 East Jefferson Street Tallahassee, FL 32399-2300

RE: Written Testimony for UPL Hearing in Tampa Florida 02/22/2013

Dear Ms. Holcomb:

This is my written testimony with regard to the unlicensed practice of law by non-attorney Medicaid planners in Florida for the public hearing scheduled for February 22, 2013. As a board certified elder law attorney in Port St. Lucie, I have experience associated with a number of non-lawyer Medicaid and VA pension planners.

For example, I am aware on very reliable authority (however, the clients will not testify for the reasons set forth in the letters you received from both John Fraser and Twyla Sketchly, the chair of the UPL committee and the Elderlaw section respectively) that, for example, Elder Care Planning (www.applyforMedicaid.com ) charged a fee of $6000 for Medicaid planning for an 80 year old individual who had over $200,000 in countable assets. The entire amount was transferred pursuant to a personal care contract prepared by that nonlawyer firm and no advice was given with respect to other alternatives for Medicaid qualification, nor was any advice given as to the fact that the caregiver would have over $200,000 of taxable income in the current year, leading to a potential tax liability approaching $50,000. The fee charged by a board certified elder law attorney would not have exceeded the nonlawyer fee significantly, but the work would not have damaged the client, and would have also provided necessary estate planning documents, multiple nontaxable strategies, and probably deferral of taxes on the taxable strategies.

In another case, nonlawyer MedicaidNA planners (a local financial services firm) advised the clients to transfer their Homestead and a vacant lot to their son so as to qualify for VA pension and also sold the family an annuity. The deed was prepared improperly and, moreover, the transfers were disqualifying for Medicaid in a situation where both the husband and wife were in an assisted living facility. Our firm cured the problems associated with the real estate transfers and were able to get the veteran the full VA aid and attendance pension benefit as well as getting both spouses qualified for Medicaid assistance in the assisted living facility.

I am also aware of a number of nonlawyer VA pension planners whose promotional materials feature red white and blue predominated graphics to give the appearance of some type of connection with the US government. These firms generally try to convey the impression to the public that they are pro bono, but in almost every case an annuity is sold to the veteran or family and, sometimes, of course, the annuity sold is unsuitable and damages the vulnerable veteran.

I have also read the testimony of the chair of the Elder Law Section UPL Committee and the Section Chair, Twyla Sketch ley, and adopt it as my own. I have witnessed these same issues in the Treasure Coast area and believe that it is paramount to the protection of Florida's elderly that a strong Advisory Opinion be issued with regard to what constitutes the unlicensed practice of law in Medicaid and other

http:www.applyforMedicaid.commailto:John@attypip.commailto:tsketchley@gmail.commailto:lholcomb@flabar.org

public benefit planning.

Thank you for your consideration of my testimony. If you have further questions, feel free to contact me at your convenience.

Michael D. Fowler, J.D., LL.M. Board Certified Elder Law Attorney Board Certified Wills, Trusts & Estates Attorney The Estate, Trust & Elder Law Firm, P.L. 240 NW Peacock Boulevard, Suite 304 Port St. Lucie, FL 34986 (772) 878-7271 (telephone) (772) 878-2981 (facsimile)

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VIA U.S. MAIL AND EMAIL:

UPL Department The Florida Bar Attn: Lori Holcomb, Esquire 651 E. Jefferson St. Tallahassee, FL 32399-2300 lholcomb@flabar.org

Re: Written Testimony for UPL Hearing in Tampa, Florida on February 22, 2013

Dear Mrs. Holcomb:

This is my written testimony with regard to the unlicensed practice of law by nonattorney Medicaid planners in Florida for the public hearing scheduled for February 22, 2013.

I am an attorney licensed by Florida and Alabama. I am currently the Co-Chair ofthe Florida Bar Elder Law Section's Abuse, Neglect, and Exploitation Committee. I have been in private practice for approximately nine years. I focus my practice on Elder Law. I practice in Northwest, Florida

The unauthorized practice of law by non-attorney Medicaid planners is causing significant harm to our state's most vulnerable citizens. The individual needing care and their families need to be protected from untrained, unqualified, and unregulated planners claiming to be experts and specialist in Medicaid.

Since starting my elder law practice I have met with clients that have been provided false information, quoted or charged excessive fees, and provided legal documents by non-attorney Medicaid planners. I have seen Qualified Income Trusts forms passed out by non-attorney nursing home personnel with no instruction on what the document is or how to properly fund it. Clients have come to my office with :flyers they received in the mail from non-attorney Medicaid planners or passed out to them by skilled nursing facility staff. Some of the :flyers are generated

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Lori Holcomb, Esquire February I, 2013 Page2

by fmancial planners that recommend unsound financial products for the elderly. They do not disclose that the financial planner could be paid additional fees or commissions on the products. Some non-attorney Medicaid planners indicate they work with attorneys. Some may. On one occasion I contacted a non-attorney Medicaid planner and requested to speak to the attorney. They refused to give me any contact information.

The majority ofmy clients are emotional and distraught when we meet. They may have known their spouse, parent or sibling was sick or in declining health and that long term care would be needed. However, they are never prepared for the reality ofplacing a family member in skilled nursing facility or assisted living. Others are caught unexpectedly by a sudden illness and decline in health. They are almost always overwhelmed and are always at their most vulnerable during this time. Clients are unwilling to file a UPL complaint with the Florida Bar often out ofembarrassment or retaliation or simply because with everything else going on it is just one more thing they cannot deal with at that time.

I have read the testimony of the Elder Law Section UPL Committee and the Section Chair, Twyla Sketchley, and adopt it as my own. I have witnessed these same issues in Northwest Flmida. It is paramount to the protection ofFlorida's elderly that a strong Advisory Opinion must be issued by the Florida Bar defining what constitutes the unlicensed practice of law in Medicaid and benefit planning.

Thank you in advance for your attention to tins matter.

. Warren

vecy[V___

ANW/

cc: Twyla Sketchley, Esquire, Chair of The Florida Bar Elder Law Section

• &! • ELDER LAW ASSOCIATES PA

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Via E-Mail (lholcomb@flabar.org)

UPL Department The Florida Bar Attn: Lori Holcomb, Esq. 651 East Jefferson Street Tallahassee, FL 32399-2300

Re: Written Testimony for UPL Hearing in Tampa Florida 02/22/2013

Dear Ms. Holcomb:

This. is my written testimony regarding the unlicensed practice of law by non-attorney Medicaid planners in Florida for the public hearing scheduled for February 22, 2013.

I am President-Elect of the National Academy of Elder Law Attorneys, a Certified Elder Law Attorney as accredited by the National Elder Law Foundation, and former Chair of the Elder Law Section of the New York State Bar Association.

As an elder law attorney in Boca Raton, Florida, I have experienced and helped fix the damage caused by the actions of non-attorney Medicaid planners.

I have read the testimony of the Elder Law Section UPL Committee and the Section Chair, Twyla Sketchley, and adopt it as my own. I have witnessed these same issues in my area (Southeast Florida) and believe that it is paramount to the protection of Florida's elderly that a strong Advisory Opinion be issued with regard to what constitutes the unlicensed practice of law in Medicaid and benefit planning.

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mailto:lholcomb@flabar.org

Lori Holcomb, Esq. February 1, 2013 Page2

Thank you for your consideration of my testimony. Please feel free to call me if you have further questions.

Sincerely,

cc: Twyla Sketchley, Esq.

ELDER LAW ASSOCIATES PA

DEEB ELDER LAW, p.A. ATIORNEYSATLAW

6675 TmRTEENTHAVENUENORlH, SUITE2C ST. PETERSBURG, FWRIDA 3371 0 E-Mail:

TERRY J. DEEB t TELEPHONE (727) 381-9800 terry@deebelderlaw.com MAl K.ONG FAX (727)381-1155 mai@deebelderlaw.com

t Certified as a specialist in VOICE MAlL(727) 345-3777 Elder Law by The Florida Bar

January 31,2013

UPL Department The Florida Bar Attention: Lori Holcomb, Esquire 651 East Jefferson Street Tallahassee, FL 32399-2300

Re: Written Testimony for UPL Hearing in Tampa, Florida 02/22/2013 From: Terry J. Deeb, Board Certified Elder Law Attorney

Dear Ms. Holcomb:

I have read the testimony of the Elder Law Section UPL Committee and the Section Chair, Twyla Sketchley, and adopt it as my own. I have witnessed these same issues in my area ofPinellas County and believe that it is paramount to the protection ofFloridas elderly that a strong Advisory Opinion be issued with regard to what constitutes the unlicensed practice of law in Medicaid and benefit planning.

Inaddition to the issue ofnon-attorneys preparing legal documents, there are some who place legal document forms on their websites and instruct their clients to download them and fill them out.

I believe you would agree that the primary mission ofthe UPL Committee ofthe Florida Bar is to protect the vulnerable consumers from untrained unqualified people giving advice they have no formal training to give and no licensing body to regulate. This is precisely the issue with nonattorney Medicaid planners. I implore this committee to take action to protect our vulnerable citizens.

Sincerely,

TERRY J. DEEB

TJD/ibm

P.O. Box 970775 Boca Raton, Florida 33497

Phone (561) 347-1071

January 31.2013

The Florida Bar Unlicensed Practice ofLaw Department Attn: Lori Holcomb 651 East Jefferson Street Tallahassee, Florida 32399-2300 Via Email: lholcomb@Flabar.org and Via US Mail.

RE: Hearing February 22, 2013- Tampa Florida Unlicensed Practice ofLaw and Medicaid Planning

I respectfully submit this letter as my written testimony to be admitted into the above referenced hearing record.

1. Qualifications and Background of Gregory G. Glenn, Esq.

o Member in good standing ofthe Florida Bar and Washington, D.C Bar o Practiced as an elder law attorney since 1995 o Certified Elder Law Attorney (as certified by the National Elder Law Foundation) o Member of the National Academy ofElder Law Attorneys o Member of the Academy ofFlorida Elder Law Attorneys o Member of the Florida Bar Elder Law Section and a member ofthe Florida Bar Real

Property, Probate, and Trust law Section (RPPTL) o Law Degree 1995- MSU College ofLaw o Bachelor ofBusiness Administration- EMU

My practice is dedicated to public benefits planning (Medicaid and Veterans benefits law), simple estate planning, guardianship and incapacity law, and probate. I serve on the Florida Bar Elder Law Section's Unlicensed Practice ofLaw Subcommittee, the Veterans Benefits Subcommittee, and the Special Needs Trust Subcommittee. I am admitted to the U.S. Veterans Affairs Court ofAppeals. Prior to becoming a lawyer I worked in the accounting industry and acquired knowledge in managing the financial affairs for clients, cash flow analysis, accounting principles, and tax law.

2. Purpose of Testimony

My goal in providing testimony today is to encourage the Florida Bar to issue a formal opinion as to what constitutes the Unlicensed Practice ofLaw in the context ofapplying for public benefits (i.e. Medicaid), and defining what services are considered the practice of law and what services are NOT considered the practice of law in relation to applying for Medicaid eligibility.

mailto:lholcomb@Flabar.org

3. Supporting Facts and Opinion in Support of a Florida Bar UPL Formal Opinion as to Medicaid Planning

The typical Medicaid applicant is a vulnerable consumer. I have personal knowledge ofnumerous individuals who have been victimized or who have been provided inappropriate advice related to fmancial planning, legal documents or interpretations of law related to applying for Medicaid.

I will provide my personal recollection of several recent cases where elderly individuals received guidance and advice from a person who was not a lawyer and was holding themselves out as providing "Medicaid Planning" services. In each case, the services included provided legal documents as well as suggestions on liquidation of assets or investments that appeared contrary to the applicant's estate plarming desires or was inaccurate. Comments I can recall aggrieved individuals making to me include:

1. Feeling they were taken advantage of, misled, not given proper advice on the ramifications of movement of assets, or given legal documents they were told to apply in relation to moving of assets to qualify for Medicaid, failure to be advised ofthe adverse impacts on his/her estate planning objectives, failure to address tax related issues, failure to be advised ofother legal requirements ofthe Medicaid laws.

2. Feeling they did not know who else they could turn to for advice on applying for Medicaid. 3. That they obtained the name of the "Medicaid Planner" from nursing home or assisted living

facility staff members. 4. Trusted the referring person's recommendation to the "Medicaid Planner". 5. The person they hired to help with the Medicaid application held themselves out as a "Medicaid

Planner". 6. The "Medicaid Planners" in each case were non-lawyers.

As an advocate for the elderly and vulnerable consumers, I was disappointed that aggrieved parties appear unwilling to pursue a formal complaint with the Florida Bar against the Medicaid Plarmers. I was given various reasons for them not wanting to pursue a complaint including: 1) not understanding they were receiving legal advice from the non-lawyer, 2) not having any idea who to file a complaint with, 2) not knowing the Florida Bar accepts complaints, 3) a feeling of embarrassment; 4) even when they learned they can file a complaint with the Florida Bar, not wanting the hassles and/or not want to "get involved"; 5) fear ofhaving to testify and be involved in a long drawn out investigation, and 6) fear of retribution.

A Florida Bar formal opinion should be rendered not to discourage third party representation ofa Medicaid applicant but to define the parameters in which services by non-lawyers can be offered pursuant to the public policy purposes for existing laws that do allow non-attorneys to represent parties in a public benefits application or hearings, the United States Tax Court, the Veterans Benefits Appeals court, and in Social Security appeals cases. A Florida Bar UPL formal opinion would also protect the elderly and other vulnerable consumers who historically appear not to know who to complain to, and who are then not inclined to file complaints with the Florida Bar when they do receive legal advice from a non-lawyer that is not appropriate and adversely affects them in some way.

The Ohio Bar's UPL Department has rendered an opinion on Medicaid Planning outlining specific criteria that defines what is considered the practice of law and what does not constitute the practice of law in the Medicaid application process. I know the Florida Bar UPL Department is aware ofand has reviewed that opinion. The Ohio Bar opinion would be a good example and starting point for the drafting ofthe Florida Bar's opinion on the same issue.

In closing, the Florida Bar rendering a formal opinion on what constitutes UPL in the context of Medicaid Planning will: 1) provide a definition of exactly what constitutes UPLand what does not, 3) afford non-lawyers a guide to interpreting their own compliance with the public policy purposes of allowing non-lawyers to represent individuals in the public benefits application process, and most importantly 4) provide a mechanism for ultimately protecting the vulnerable consumer market from unlicensed practice of law in connection with applying for Medicaid benefits in Florida.

I respectfully submit the Florida Bar UPL Formal Opinion be drafted and published in alignment with Florida Bar's overall mission to protect the consumer.

Sincerely,

_A!k,ifc_ Gregory G. Glenn, Esq.

THE ELDER LA\V CENTER OF

~NDSCHEIN and~NDSCHEIN, P.A. A Firm DedicatedTo The Praccice Of

IElder Law And Special Needs Planning ATTORNEYS AT lAw

Leonard E. Mondschein* J.D., LL.M., CELA, CAP

Florida Bar Board Certified ln Elder Law Florida Bar Board Certified in Wills, Trusts and Estate Law

Certified Elder Law Atrorney !.y the National Elder Law Fow>dation, A.B.A. appro..,d Conucil ofAdvanced Practitioners

Philip H. Mondschein* J.D., fl.M.

• Membec of tb.c:; Nadorud Acaden'l}' of Elder LawAttorneys

AREAs OF PRACTICE

• Elder Law • Medicaid Planning o Probate

o Estate Planning o Guardianship • Special Needs Trusts • Planning Fodncapaciry • Wills & Trusts

MIAMI OFFICE

9000 s.w. 87th Court Suite218 Miami, FL33176 Phone: 305-274-0955 Fax: 305-596-0832

AVENTURA OFFICE

20801 Biscayne Blvd. Suite403 Aventura, FL 33180 Phone: 305-705-0940

www.MiamiElderLaw.com

January 31, 2013

UPL Department The Florida Bar Attn: Lori Holcomb, Esquire 651 East Jefferson Street Tallahassee, FL 32399-2300

Re: Written Testimony for UPL Hearing in Tampa Florida 02/22/2013 From: Leonard E. Mondschein Past Chair of the Elder Law Section of The Florida Bar

Dear Ms. Holcomb:

As a former Chair of The Elder Law Section of The Florida Bar, and Board Certified in Elder Law as well as Wills, Trusts and Estates, I would like to list below what I have seen and heard regarding Medicaid Planners, who are not attorneys. I believe these people constitute a threat to the public and in many cases are engaged in the unauthorized Practice of Law and/or are working with attorneys who are acting in an unethical manner.

1. Some Medicaid Planners are drafting Qualified Income Trusts, Personal Service Contracts and Durable Powers of Attorney. In some cases these documents are signed by persons in skilled nursing facilities, who are incapacitated and are in need of a guardianship as they lack the requisite capacity to understand what they are signing. My office received a call from a client of V.I.P., a Medicaid Planning company, who charged the client $600.00 for a Personal Service Contract. They told me that no attorney to their knowledge was involved and they wanted to pay me to review it as they were uncomfortable with the document. When I told them that

http:www.MiamiElderLaw.com

this needs to be reported to the Florida Bar, they did not call back for fear that their Medicaid case would be in jeopardy.

2. Other Medicaid Planners are working with attorneys in the background who the public never sees but are represented to be the client's attorney. In fact, these attorneys owe their loyalty and in some cases are paid by the Medicaid Planners, and if not, still owe their loyalty to the Medicaid Planner. These attorneys do not exercise their own judgment but rather do what the Medicaid Planner tells them to do.

3. Recently, a prospective client called my office and told me that a Medicaid Planning Company (Again, V.I.,P), after an initial consultation kept calling them and harassing them to hire V.I.P. This was very heavy sales tactics.

4, Most of the brochures that I have seen from Medicaid Planners, have only telephone numbers with no office address. Some of my clients have told me that they hired me when they found out they could not meet with these people but handle · everything by telephone and mail.

5. Another Miami attorney called me last year and showed me legal documents drawn up by a Medicaid Planner in Broward County, for a nursing home resident who was mentally incompetent. The family was charged $3,000.00 by the Planner.

6. Some nursing homes have told me that certain Medicaid Planners have offered "kick-backs" for anyone who hires them.

7. All non-attorney Medicaid Planners have the following in common: They have no licence of any kind, have no rules regulating their conduct, can advertise themselves as experts to the public, they can engage in high pressure unsolicited sales practices and scare tactics, carry no mal practice or liability insurance, never have to pass a bar exam or certification exam, have no requirement to have any education or training, and owe absolutely no duty of loyalty or ethical behavior to those who pay them fees.

What the Florida Bar must understand is that the analysis of a set of facts, application of law and advice, in and of itself constitutes the practice of law. The practice of law, particularly in these kinds of cases involving vulnerable consumers, is more than just drafting of legal documents. Limiting the practice of law to the drafting of legal documents or pleadings fails to recognize the purpose of a legal education. It is the. "thinking process", which comes from a legal education, ethical behavior and best interest of the client as well as knowing who is your .client, that separates licenced attorneys from Unlicensed Medicaid Planners. These individuals either directly violate the law by the unauthorized practice of law or skirt the law by unethical arrangements

http:3,000.00

with attorneys who may or may not know that their conduct is actionable.

LEM/pa

Re: Unlicensed practice of law by non-attorney Medicaid planners Lori Holcomb to: DAKnulandlaw 02/04/2013 05:03PM Bee: Jeffrey T Picker

Thank you. Our agenda has already been printed. This will be provided in a supplement prior to the hearing~

Lori S. Holcomb Director, Client Protection The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 phone -- 850-561-5840 fax -- 850-561-9432

L DAKnulandlaw !Dear Ms. Holcomb 02/04/2013 ------~

05:00:~fPM --------------

From: DAKnulandlaw@aol.com To: lholcomb@flabar.org Date: 02/04/2013 05:00 PM Subject: Unlicensed practice of law by non-attorney Medicaid planners

Dear Ms. Holcomb This is my written testimony with regard to the unlicensed practice of law by non-attorney Medicaid planners in Florida for the public hearing scheduled for February 22, 2013. As an elder law attorney in Jacksonville, I have experienced the following actions of a non-attorney Medicaid planner They have not reviewed the client's assets or recommended planning tools that would benefit both the state and the client. Thank you for your consideration of my testimony. If you have further questions, feel free to contact me at your convenience Deborah A. Knauer, Esq. Law Offices of Christopher L. Nuland 1000 Riverside Avenue, Suite 115 Jacksonville, FL 32204 904/355-1555 Fax: 904/355-1585

DISCLAIMER: This information and any attachments contained in this email message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by return email, and delete the original message immediately.

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CONFIDENTIALITY NOTICE: The information and all attachments contained in this communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader if this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of

mailto:lholcomb@flabar.orgmailto:DAKnulandlaw@aol.com

r- -----· -------------------------------- --------------------- -- ---------

Law Office of I. Michael Tucker, P.L.C. SunTrust Bank Building 498 Palm Springs Drive, Suite 100 Altamonte Springs, Florida 32701

Phone: 407-977-8836 Fax: 407-977-5252 Email: estates@cfl.rr.com

February 2, 2013

The Florida Bar Unlicensed Practice of Law Section 651 E. Jefferson Street Tallahassee, FL 32399-2300

Good Morning:

In response to a recent posting about examples of unlicensed practice of law, I recently encountered the preparation of a trust amendment by a financial planner. The financial planner lists the following Certifications: Chartered Retirement Planning Counselor, Certified Estate Planning Professional, Certified Annuity Consultant and Certified Senior Advisor.

This individual in a letter to a then client wrote, "Having assisted you with an Amendment [changing the successor trustee to the author's company,] to your Living Trust, [company name] offers you and your future trustees our continued services at any future time". This letter was written in May 2007.

If this wasn't bad enough, the author of the letter also improperly notarized the amendment by notarizing his mother's signature as one of the two witnesses to the document. This could have resulted in a successor trustee being appointed under an invalid document, thereby leaving the trust without a successor trustee. Fortunately, the problem has been resolved by referring back to the original trust documentation.

In another incident, I came across another financial planner that recommended a living trust to an elderly widow when she was already set up properly with joint accounts and proper beneficiary designations with her only surviving daughter. In addition, the attorney replaced a "Lady Bird Deed" by placing the real estate into the new trust. The financial planner referred the client information to the attorney who threw out the proper planning and installed a living trust package at the price of $2,500.00.

Elder Law, Charter Member of ElderCare Matters® (State Representative) Medicaid Planning, Member of Society of Medicaid Planners,

Accredited VA Attorney Member National Care Planning Council

Special Needs Trust Planning Estate Planning o Probate Guardianships 0 Asset Protection Planning

_________j i

http:2,500.00mailto:estates@cfl.rr.com

I l , i I will not divulge the names of my clients nor will I divulge the names of the offenders.

One reason is that the first instance happened very recently and it could cause embarrassment to my client if this were to lead back to him. The second reason is that my client has asked me not to divulge her name even though this happened several years ago as she was recovering from the recent loss of her husband and her only son.

I would strongly recommend that the Bar instruct all attorneys whether they be elderly lawyers, estate planning attorneys or general practice attorneys to provide Medicaid planning language in QJl durable powers of attorneys not just those specifically prepared to meet elder law objectives. Unfortunately, too many times in the past have I found this language missing from even recently prepared durable powers of attorney. With the increased risk of catastrophic illness and injury, I feel that this is a most important issue that must be addressed today. I have been using the complete Medicaid planning provisions in all of my durable powers of attorney and "Lady Bird Deeds" from, at least, 2005 when I started suffering from peripheral artery disease.

It seems that will all of these "certification" labels, that many of them are confusing and it allows some people an opportunity to overstep the boundaries to the determent of the public. Even though, I consider myself an "expert" in elder law and estate planning after nearly 35 years of experience, I never represent to my clients that I am an "expert" because the laws change to often and I have been physically unable to take the certification exams due to peripheral neuropathy.

Very truly yours,

"-~-----Ivan Michael Tucker FBN: 0326003

Elder Law, Charter Member of ElderCare Matters® (State Representative) Medicaid Planning, Member of Society of Medicaid Planners,

Accredited VA Attorney Member National Care Planning Council

Spedal Needs Trust Planning Estate Planning Probate Guardianships 0 Asset Protection Planning

~-·····-···--·--··-i

MYFlFAMILIES.COM

Rick Scott Governor

State of Florida David E. Wilkins

Department of Children and Families Secretary

February 14,2013

Mr. Jeffery T. Picker, Esquire UPL Department The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300

RE: FAO #2011-4; Medicaid Planning Activities by Nonlawyers.

Dear Mr. Picker,

The Florida Department of Children and Families is the state agency charged with determining the eligibility of applicants for the Medicaid program. Currently, the Department does not have a policy that requires a licensed attorney to prepare, aid in the preparation, or execution of Personal Service Contracts, Qualified Income Trusts, or the Medicaid application.

As a matter of federal law and policy there is no legal restriction on who can or cannot participate in the Medicaid application process. An applicant must be able to freely choose an individual or individuals to accompany, assist, and represent the applicant in the Medicaid application process. 42 Code of Federal Regulation §435.908.

In addition, the Department permits applicants the ability to appoint a Designated Representative to act on their behalf during the determination of eligibility for public assistance. See Department of Children and Families Form CF-M 2505. A Designated Representative may be authorized to complete the application on behalf of the applicant if they are unable to do so. The Designated Representative must: 1) be authorized in writing by the payee, spouse, or another responsible member of the assistance group; 2) be authorized prior to determining eligibility of the assistance group, however, the assistance group can also name the representative at any time during the review period; and 3) be an individual who is familiar with the current circumstances of the assistance group. See ACCESS Florida Program Policy Manual, Section 3230.0102.

In sum, the Department does have requirements that must be met for a Personal Services Contract and Qualified Income Trust to be approved, but it does not have a department policy that requires an attorney to prepare or aid in the preparation of these instruments.

1317 Winewood Boulevard, Tallahassee, Florida 32399-0700

Mission: Protect the Vulnerable, Promote Strong and Economically Self-Sufficient Families, and Advance Personal and Family Recovery and Resiliency

http:MYFlFAMILIES.COM

('~LER & BRASINGTON, P.L. ~ lv{~ AN ELDER AND SPECIAL NEEDS LAW FIRMW Working with Clients to Create Solutions Sf-lANNON M. MILLER 1204 NW 691h Terrace, SuiteD Telephone: (352) 379-1900 MONICA). BRASINGTON Gainesville, Florida 32605-3139 Toll-free: (877) 3 79-1901 shttllllOit@!JJi!lerbrasillgfoll.mnt February 15, 2013 Facsimile: (352) 379-3926 nlollica@nti!lerbraJillgto/1. com

lJPL Department The Florida Bar ATTN: Lori Holcomb, Esq. 651 East Jefferson Street Tallahassee, FL 32399-2300 via email: lholcomb@flabar.org

RE: Written Testimony for UPL Hearing in Tampa, Florida 2/22/2013

Dear Ms. Holcomb:

I am currently a member of the Florida Medicaid Task Force of the Elder Law Section of the Florida Bar. Our committee is concerned by the number of reports that have been made to the Elder Law Section of the Unlicensed Practice of Law Committee, regarding non-lawyer "Medicaid and/or VA planners".

I am a Florida Bar Certified Elder Law Attorney and a large part of my practice consists of Medicaid Planning for senior clients. A number of my clients have told me of their experiences with non-attorney Medicaid and VA planners who are engaging in activities that constitute UPL, and other improper conduct. Those alleged UPL activities include the preparation of legal documents, such as qualified income trusts, personal service contracts, durable powers of attorney by non-attorneys and providing legal advice to clients regarding the transfer of assets, restructuring of assets, estate planning and other legal advice. These activities by non-attorney Medicaid and VA planners have injured my clients, including excessive fees denial of Medicaid eligibility, exploitation, severe tax liability, and the purchase of inappropriate financial products, thus threatening my clients' life savings.

One very important activity that appears rampant in our area is non-attorneys approaching veterans, who are encouraged to transfer their assets to an irrevocable VA trust which purchase non-refundable annuities, which results in non-qualification for Medicaid. I have seen this in two recent cases, unfortunately. Please consider my testimony, and protect our veterans and seniors.

www.MillerBrasington. com

www.MillerBrasington

UPL Medicaid Public Hearing- Supplement To Written Testimony dated January 31, 2013 Twyla Sketchley to: Lholcomb, Jpicker 02/20/2013 09:10AM Cc: "'John Frazier"'

5 attachments

Platinum Benefit Planning - Website.pdf Brookstones Securities - Article.pdf

FINRA Hearing Panel Fines Brookstone Securities $1 Million for Fraudulen....pdf 3504_0001.pdf

-,: Platinum Benefit Planning - Brochure.pdf

Ms. Holcomb & Mr. Picker:

On January 31, 2013, I submitted written testimony for the February 22, 2013 UPL hearing on the issue of UPL by non-attorney Medicaid planners. In that written testimony, I provided an exhibit for the non-attorney Medicaid planning firm, Platinum Benefits Planning that had trademarked the phrase "The Medicaid Experts". A member of our section has forwarded to our UPL committee the attached information about the Platinum Benefits Planning firm that I believe is important for the Bar to consider when determining whether an Advisory Opinion would be necessary to protect Florida consumers.

As you can see from the materials provided, including news reports from the local paper where the firm is located, the principal behind Platinum Benefits Planning has had some very serious difficulties with FINRA with regard to his securities sales practice, leading to the suspension of his securities license, fines and closing of his previous business. However, those issues have not stopped him from engaging in "Medicaid planning" for Florida vulnerable consumers. A review of his website materials and marketing brochure, there may be possible unlicensed practice of law issues related to his "Medicaid planning."

Please add these materials as a supplement to my written testimony submitted on January 31, 2013.

Thank you for your consideration.

Twyla Sketchley Florida Bar Board Certified In Elder Law, Licensed in Florida and Montana Chair, Elder Law Section of The Florida Bar 2012-2013

THE SKETCHLEY LAW FIRM, P.A. The Professional Center at SouthWood 3689 Coolidge Court, Suite 8 Tallahassee, FL 32311 Telephone (850) 894-0152

Facsimile (850) 297-2884 www.sketchleylaw.com

If you have an urgent message or if you have not heard from me in response to your e-mail, telephone me. PLEASE DO NOT ASSUME YOUR EMAIL HAS BEEN RECEIVED.

This e-mail, together with any attachments, is confidential. It is intended only for the recipient(s) named above and may contain information that is privileged, protected as attorney work product or otherwise exempt from disclosure under applicable law. If you have received this e-mail in error, or are not the named recipient(s), you are hereby notified that any use, dissemination, distribution or copying of this e-mail, any of its contents or any attachments is strictly prohibited. Please immediately notify the sender at twyla@sketchleylaw.com and delete this e-mail and any attachments from you computer. You should not retain, copy or use this e-mail or any attachments for any purpose, or disclose all or any part of the contents to any person or entity.

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Written Testimony Pgs. 125-153