What the Florida Supreme Court Actually Held
In January 2015 the Supreme Court of Florida issued an advisory opinion answering a question the Florida Bar's Elder Law Section had put to it. The question was whether it is the unlicensed practice of law for a non-lawyer to do three things in the run-up to a Medicaid application.
"whether it constitutes the unlicensed practice of law for a nonlawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: (1) drafting of personal service contracts; (2) preparation and execution of qualified income trusts; or (3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits."
The Court answered yes as to all three. The middle one is the one families meet most often, because a qualified income trust is the standard fix for being over Florida's income cap, and it is routinely sold as a product.
The Part Almost Everyone Leaves Out
The same opinion is equally clear in the other direction, and this half tends to disappear from pages written by lawyers.
"The preparation of the Medicaid application is not the unlicensed practice of law as it is authorized by federal law."
The Court went on to say that gathering the information about someone's assets needed to complete the application falls on the same permitted side. So a family member, a facility social worker, or a paid non-lawyer service can help you fill in the forms. Anyone telling you that only a lawyer may touch a Florida Medicaid application is overstating what the Court said.
Where the Line Actually Falls
The distinction is not about price, or about job titles, or about whether someone calls themselves a planner or a consultant. Two questions get you there.
- Are they drafting a document? A trust, a contract, a deed. Drafting is legal work.
- Are they telling you what Florida law requires in your circumstances? Reading you a published rule is one thing. Applying it to your facts and telling you what to do is advice.
If either answer is yes, the work sits on the legal side of the line the Court drew. Completing an application from information you supply sits on the other side.
Not sure whether you need planning or just help filing?
Book a free 30-minute consult. If your situation is mostly paperwork, we will tell you that rather than sell you a plan you do not need.
Book your free consultWhy the Risk Lands on You, Not on Them
This is the part families do not expect. If a qualified income trust is prepared badly, the person who prepared it is not the one holding the consequence. You are.
A trust that does not meet the federal requirements can mean an application is denied or stalls while it gets sorted out, and the nursing home bill does not pause during that time. Florida care runs roughly ten to eleven thousand dollars a month. A two-month delay is a real number, and it dwarfs the difference between what a non-lawyer service charges and what a lawyer charges.
There is also no rule that saves a defective document because it was prepared in good faith. The agency reviewing the application is not required to overlook a defect because the family did not know any better.
The Personal Service Contract Problem
A personal service contract pays a family member in advance to provide care, converting countable assets into a permitted expense. It is one of the three activities the Court named, and the reason is worth understanding.
Done correctly it is a legitimate and well established tool. Done incorrectly it is treated as a gift, which under the five year look-back produces a penalty period during which Medicaid pays nothing. The family set out to protect money and instead bought a stretch of months with no coverage. That is a judgment call about Florida law applied to specific facts, which is exactly what the Court described as legal work.
What to Ask Before You Pay Anyone
- Will you be drafting any document for me? If a trust or a contract is included in the price, that is drafting.
- Are you a Florida lawyer, and what is your bar number? It takes one search to check, and a licensed lawyer will give it without hesitating.
- Who is responsible if the application is denied because of the document? Read the answer in their terms rather than taking it verbally.
- Are you advising me on what to do, or completing forms from what I tell you? The honest answer to this is the whole question.
- Will you tell me if I do not need planning at all? Plenty of families are already under the limits and need nothing but the application.
What This Costs With a Lawyer
A qualified income trust is a flat $750 here, including the document and getting the trust bank account established correctly, because the account is where most applications actually stall. Broader planning is quoted at the consult, since it depends on what the family owns and how much time there is before care is needed.
The consult is free and takes thirty minutes. If it turns out you are already under both limits and simply need the application filed, we will say so. The eligibility calculator will give you a rough answer before you even call.
Frequently Asked Questions
Can a Non-Lawyer Do Medicaid Planning in Florida?
Not the planning part. In 2015 the Florida Supreme Court held that it is the unlicensed practice of law for a non-lawyer to draft personal service contracts, to prepare and execute qualified income trusts, or to render legal advice about applying Florida law to obtain Medicaid benefits. Those are the three activities the Court was asked about and it answered yes as to all three. What a non-lawyer may still do is prepare the Medicaid application itself, because federal law authorizes that, and gather the information needed to complete it.
So Who Can Help Me Fill Out the Application?
Anyone, in practical terms. The Court was explicit that preparing the application is not the unlicensed practice of law, since federal law permits it, and that gathering information about someone’s assets in order to complete it is part of the same permitted activity. A family member, a facility social worker, or a paid non-lawyer service can do that work. The line is not the paperwork. It is whether someone is advising you on how Florida law applies to your situation, or drafting the legal instruments that carry out a plan.
What Is a Personal Service Contract and Why Does It Matter Here?
It is an agreement under which a family member is paid in advance to provide care, used to convert countable assets into a permitted expense. It is one of the three activities the Court specifically identified, because drafting it requires judgment about Florida law, the transfer rules and the five-year look-back. Getting it wrong does not merely fail. It can be treated as an uncompensated transfer and generate a penalty period, which is the opposite of what the family was trying to achieve.
What Happens to Me If a Non-Lawyer Prepared My Trust?
The risk lands on you rather than on them, which is the part people find unfair. If the qualified income trust does not meet the federal requirements, the practical consequence is that the application can be denied or delayed while a nursing home bill of ten to eleven thousand dollars a month keeps running. You are the one holding that bill. There is no rule that automatically validates a document because a non-lawyer prepared it in good faith, and the agency reviewing your application is not obliged to overlook a defect.
How Do I Tell Whether Someone Is Doing Legal Work?
Ask two questions. Are they drafting a document, meaning a trust, a contract, or a deed? And are they telling you what Florida law requires in your circumstances rather than simply reading you a rule? Either answer being yes puts the work on the legal side of the line the Court drew. Filling in an application from information you supply, by contrast, sits on the permitted side.
Are Non-Lawyer Medicaid Planners Illegal in Florida?
The businesses are not outlawed and the opinion does not shut anyone down by itself. What it establishes is that three specific activities amount to practicing law without a license when a non-lawyer performs them. Some services responded by narrowing what they offer, and others did not. That is why the practical question for a family is not whether a company is allowed to exist but whether the particular work being sold to you falls inside or outside what the Court described.
What Does This Cost With a Lawyer?
We charge a flat $750 for a qualified income trust, including the document and getting the trust bank account set up correctly. Broader Medicaid planning is quoted at the consult, because it depends on the assets involved and how much time there is. The consult itself is free and thirty minutes, and if your situation turns out to be one where you mostly need help filing the application, we will tell you that.
Common Situations
The trust bought at a seminar. A family attends a free lunch presentation and pays a non-lawyer service for a qualified income trust. The document is signed but the trust bank account is never opened, so nothing is ever deposited. The trust exists on paper and does nothing, and the application is denied for income while the facility bills the family directly.
The daughter paid for care. A son arranges to pay his sister in advance for looking after their mother, on a handshake and a written note he found online. There is no valuation of the services and no schedule. When the application is reviewed, the payment is treated as a gift rather than a purchase, and the family faces a penalty period instead of the qualification they expected.
Sources of Law
- The Florida Bar re: Advisory Opinion, Medicaid Planning Activities by Nonlawyers, 183 So. 3d 276 (Fla. 2015) (No. SC14-211, per curiam). Holds that drafting personal service contracts, preparing and executing qualified income trusts, and rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits each constitute the unlicensed practice of law when performed by a non-lawyer. The same opinion states that preparation of the Medicaid application is not the unlicensed practice of law because it is authorized by federal law, and that gathering the information needed to complete the application falls within that authorization. Quotations above are reproduced from the opinion text; verify against the official slip before republishing.
- Qualified income trust requirements: 42 U.S.C. §1396p(d)(4)(B). Transfer penalties and the five-year look-back: 42 U.S.C. §1396p(c). Florida rules at FAC 65A-1.712 (resources) and 65A-1.713 (income), with DCF ESS Policy Manual ch. 1640 and ch. 1840.
- Reading note: this page describes a holding about categories of conduct. It is not an accusation that any particular business is engaged in the unlicensed practice of law, and whether specific work crosses the line depends on what that work actually is. (retrieved 2026-08-30)
Updated on August 30, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida and federal law, not legal advice, and no attorney-client relationship is created. Eligibility depends on your own facts and timing, and no result is guaranteed. Do not send confidential information until we have agreed to represent you.