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Probate and Estate Administration

New York Medicaid Applications and the Unlicensed Practice of Law

Published August 25, 2021

By Brian L. Miller, Esq., Littman Krooks LLP

Recently, the New York chapter of the National Academy of Elder Law Attorneys (NAELA) proposed legislation in Albany regarding the unlicensed practice of law surrounding Medicaid applications submitted by non-attorneys. While federal regulations allow non-attorneys to prepare and submit routine Medicaid applications on behalf of an applicant, often submitting Medicaid applications requires more than simply filling out a form.

Prior to submitting a Medicaid application, it is not uncommon for the applicant to transfer assets, create trusts, change account beneficiaries, etc. This type of work goes beyond the mere act of filling out a Medicaid application form as legal advice is necessary which should be handled by experienced elder law attorneys. It is this work that if done improperly, can cause severe consequences when applying for Medicaid, and sometimes even after the Medicaid applicant/recipient has passed.

One of the greatest travesties we see as elder law attorneys, are the family members who only learn about Medicaid estate recovery after their loved one dies. Federal law requires that the state seek recovery from the Medicaid recipient’s estate (and sometimes the surviving spouse’s estate) after their death. Thus, while certain assets such as the house, retirement account, vehicle, etc. may be exempt when applying for Medicaid, if not handled properly it may be subject to estate recovery for the Medicaid benefits paid during the recipient’s lifetime. There are planning techniques to help protect certain assets from estate recovery, but this falls under the “planning” aspect when applying for Medicaid, which should be handled by an experienced elder law attorney.

As the planning and guidance is truly a consumer protection issue, NAELA is working on having New York state laws updated to protect the consumer. NALEA’s proposed bill would require nursing homes to provide written notice as part of the admission process and posting in the facility, that the consumer has the right to hire an attorney to assist with the Medicaid application, as well as advise of the potential pitfalls of relying on non-attorney entities for the Medicaid application process. Non-attorney entities are not allowed to provide legal advice, implement legal strategies, or even advise the consumer of their rights. Moreover, many of the non-attorney entities have conflicts of interest that they are not required to advise the consumer about.
While NAELA continues to lobby for the proposed bill, we recommend that the consumer retain the services of an experienced elder law attorney when preparing an asset protection plan and Medicaid application.

There are planning techniques to preserve assets, retain income, and even lessen the repercussion of Medicaid estate recovery; however, only an elder law attorney can truly inform and effectuate this process. The attorneys of Littman Krooks LLP are experienced elder law attorneys and provide the level of sophistication and knowledge to recommend the proper asset protection and Medicaid application. We understand that no two clients are the same and will prepare and effectuate a plan specific to the particular needs of the client. To learn more about how our dedicated team of attorneys can assist you, call (914) 684-2100 to schedule a no-obligation consultation today or contact us here.

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