Medicaid Advice by non lawyer is Illegal

 

 

The Florida Supreme Court has recently ruled that advice from nonlawyers as to Medicaid planning is the unauthorized practice of law.  When the non bar person or non lawyer renders advice as to “the initial determination that the particular legal document or Medicaid planning strategy is appropriate for the client given the client’s particular factual circumstances” this is the unauthorized practice of Law. Florida Bar News 3/1/2015; The Florida Bar RE: advisory opinion-Medicaid Planning Activities by Nonlawyers, case number SC 14 – 211.

Joint Accounts and Avoiding Probate

Everyone wants to avoid probate.  However, some of the ways to avoid probate do not always achieve the desired results.  Two ways to avoid probate are “joint account ownership” and “transfer on death”.  Joint ownership, if it is a joint tenants with rights of survivorship, simply provides that the surviving owner on the death of the first owner assumes complete ownership at that time.  But that comes about in the case of a financial institution as a result of a statute that provide for that outcome as a rebuttable presumption.  That means if you have evidence that the creator of the account, who is now the decedent, did not want the survivor to have sole ownership of the account at his death, then the accounts would pass through probate of the deceased owner’s estate.  See F.S.§655.78

A transfer on death account is governed by a different statute.  It does not provide for rebutting of a presumption that it goes to the named survivor, rather it provides that the transfer to the surviving named account owner is final.  It does not provide for presentation of another intent.  F.S.§655.82.  A new case confirms this, to wit, Brown v. Brown, 1d13-4452 (Fla 1st DCA, 2014).

In that case the joint ownership accounts because of other evidence went to the beneficiaries of the deceased account holder's probate estate, while the transfer on death accounts went to the named beneficiary on the account.