Comparing a Certified Medicaid Planner with a Certified Elder Law Attorney

Medicaid planningQ. My sister-in-law and my husband have recently been discussing Medicaid Planning for my husband’s mother, who is in an early stage of dementia. You and your law firm represented my parents several years ago when we needed to protect their assets and get my mom on Medicaid. Thank you again for that! My siblings and I are very grateful that you were able to protect all of our parents’ assets for my father’s use for the rest of his life and still get our mother on Medicaid! Before meeting with you, we did not think this was possible!

From working with you and learning about your credentials, we know that you are a very experienced Elder Law attorney who understands all the nuances of the Medicaid statutes, the Medicaid regulations, and the Medicaid manual, both at the state level and the federal level. I also know from going through the Medicaid planning process for my parents, and from reading your newsletters over the years, that Medicaid planning and filing of the Medicaid application are extremely complex legal matters, and we know for certain that we should not tackle it alone. I know you are a Certified Elder Law Attorney because you have CELA after your name, and I know that your law firm (and a few other local law firms) specialize in Medicaid planning, so because my family had such a good experience using your firm, I suggested to my family that we use your firm’s services for my father-in-law’s situation. However, my husband‘s sister has suggested that we may be able to save money by instead using a Certified Medicaid Planner (CMP) to help us do Medicaid planning and have them apply for Medicaid for us. I have done a little research about CMPs, and from what I’ve seen these people are not attorneys, and therefore can’t give legal advice, and from what I already know about Medicaid planning, and the work we already did with your firm for my parents, there is a lot of legal knowledge and legal advice that goes into it. I really want to make sure the Medicaid planning process for my mother-in-law is done correctly and legally, and that the application is done at the right time, and done right the first time, but I have my doubts about using a CMP. Can you clarify the difference between using a CMP and a Certified Elder Law Attorney to do Medicaid Planning? Thanks for your help!

A. A Certified Medicaid Planner™ (CMP) may hail from a variety of backgrounds. Some are financial service professionals perhaps hoping to provide paid financial services in connection with their Medicaid planning services; some are insurance agents perhaps hoping to sell insurance products in connection with their Medicaid planning services; some are accounting professionals perhaps hoping to sell accounting services in connection with their Medicaid planning services; some are funeral directors perhaps hoping to sell prepaid funeral services in connection with their Medicaid planning services.

But you are correct that, as a general rule, CMPs are not attorneys. Based on how much experience they have and how long they have been a CMP, they may have a broad understanding of Medicaid, the eligibility rules, how to qualify, and maybe even know how to appeal cases of Medicaid denial (though in many states, it requires an attorney to represent someone in connection with a Medicaid appeal in front of an Administrative Law Judge). However, when it comes to Medicaid (the most complex area of law in the United States), a true legal expert is needed if you’re hoping to obtain the best legal advice and the most favorable results.

Although CMPs undergo a certification process that requires them to reach specific education and/or experience levels and to pass an exam, they are generally much less knowledgeable than CELAs — Certified Elder Law Attorneys — such as myself, who are the recognized foremost experts in the field of Medicaid Asset Protection Planning. CMPs may in some cases cost less than Certified Elder Law Attorneys, but there is a reason for that. Here is what you are getting if you choose to hire a CMP for Medicaid Planning:

A CMP Cannot Give Legal Advice

Many non-attorney “Medicaid planners,” including Certified Medicaid Planners who are not also attorneys, regularly engage in the unauthorized practice of law. Every state has laws stating that the unauthorized practice of law by a non-lawyer is a crime. There have been numerous criminal cases where non-attorney Medicaid planners have been convicted of the crime of committing the unauthorized practice of law. Here is an article about a case from Florida where a non-lawyer Medicaid planner was convicted of the third-degree felony of practicing law without a license.

Here is another interesting article about a non-lawyer who was providing legal advice and even preparing legal documents in connection with Medicaid planning and estate planning in Texas.

Here is a similar article about a case in Ohio of the unauthorized practice of law by a so-called Medicaid planner.

CMPs Can Help with Administrative Matters but Not Legal Matters

A CMP can certainly assist with administrative tasks and some planning strategies to gain Medicaid eligibility, but a CELA is much more knowledgeable and focused on the legal aspects of Medicaid and long-term estate planning. Federal law allows non-attorneys such as CMPs to help consumers fill out applications for Medicaid. However, as explained above, non-attorneys cannot practice law and offer legal advice, and CMPs, as a general rule, are not attorneys. If you are considering hiring a CMP, be sure to ask them whether they are also an attorney. The holding of a CMP designation does not give the certificant a license to practice law.

CMPs Are Encouraged to Work Alongside Attorneys

The CMP board encourages all non-attorney CMP certificants to work with a CMP certificant who is licensed to practice law. They “encourage the mutual cooperation and mutual respect of all disciplines involved in the long-term care Medicaid eligibility process, in an effort to help consumers work with knowledgeable professionals in the field of long-term care Medicaid eligibility and help guide those professionals to stay within the ever-confusing confines of state and federal rules.” Why work with a CMP and an attorney, when you can work directly with a Certified Elder Law Attorney who is more knowledgeable about Medicaid Asset Protection to begin with?

CMPs Are Generally Not Focused on Medicaid Planning

Many law firms that are run by a CELA, such as the Farr Law Firm, are highly specialized Medicaid planning attorneys, Estate Planning attorneys, Elder Law attorneys, special needs lawyers, and Elder Care attorneys. As mentioned previously, CMPs are typically not specialized attorneys but rather generally devote most of their time to their primary business such as financial planning, insurance planning, accounting, or funeral directing.

A CMP is of course Generally Not as Knowledgeable as CELA

A Certified Elder Law Attorney (CELA) will generally have a thorough understanding of the care needs and progression of someone with Alzheimer’s disease, for instance, and the financial impact, while a Certified Medicaid Planner might not have the same awareness.

CMPs Cannot Prepare Legal Documents

CMPs Cannot Prepare Legal Documents such as irrevocable Medicaid asset protection trusts, wills, powers of attorney, etc., unless the Certified Medicaid Planner happens to also be an attorney, which again is unlikely. A Certified Elder Law Attorney can prepare all of these documents, including an irrevocable Medicaid asset protection trust that is often done as part of Estate Planning, especially for someone, such as your mother-in-law, who is in the early stages of Alzheimer’s. For instance, our firm prepares the Living Trust Plus® Medicaid Asset Protection Trust, the Living Trust Plus® Veterans Asset Protection Trust, and the Living Trust Plus® Income Retention Trust. All of these are specialized Medicaid asset protection trusts (and one also assists people in obtaining the Veterans Aid and Attendance benefit). An attorney who prepares a Medicaid asset protection trust should be licensed in the state where the trust creator lives.

CMPs Cannot Go to Court

Sometimes doing proper Medicaid planning requires going to court to appoint a guardian and/or conservator, in what is often called a Medicaid-style guardianship proceeding or similar court proceeding where a judge grants an individual or a married couple the ability to do Medicaid planning. A CMP, who is generally not an attorney, simply cannot accomplish these things.

A CMP Does Not Need Nearly as Much Education or Training as a CELA

To become a CMP, you simply need a bachelor’s or associate degree plus two years of full-time related experience; or a JD or a master’s degree in accounting, social work, or health financing; or four years of related experience; or a professional securities license, license for life and health insurance, or a CFP designation along with two years of full-time experience within the last six years. A CMP must also pass a certification exam and completing continuing education credits each year. On the other hand, to become an attorney, you must first graduate college with a four-year undergraduate degree, then attend three years of law school, and then pass at least one state bar exam. Becoming a Certified Elder Law Attorney then requires at least 5 years of work and commitment dedicated to 12 sub areas in the field of Elder Law, board review, a rigorous full-day exam that has a very low pass rate, and specialized continuing education and peer reviews from other Certified Elder Law Attorneys every five years.

A CMP Is Not Legally Required to Adhere to a Code of Ethics

CMPs are supposed to adhere to certain internal “ethical principles” that the CMP board of governors has itself created, and their website says they are subject to disciplinary action if they are found to have violated these ethical principles. From the CMP website: “The CMP™ Governing Board holds the final authority on all decisions concerning discipline and reinstatement.” The CMP™ Governing Board states that it uses it’s “grievance process” to expose and address what it finds to be “flagrant violations” of the CMP™ Ethical Principles. Note that their own internal rules do not address what happens when a CMP commits professional / legal malpractice, meaning handling your Medicaid plan case in a negligent manner, as the CMP grievance process specifically deals only with ethics and not actual Medicaid Planning work that may be done improperly by the CMP. Also, the CMP website does not appear to list CMP certificants who have been punished or suspended or terminated for ethical violations.

CELAs, on the other hand, are all attorneys who must adhere to the ethical rules promulgated by each state in which they are licensed and if they fail to do so, they risk severe punishments up to and including losing their license to practice law. And you can look up whether an attorney has had any disciplinary actions on the state bar website of every state.

A CMP Likely Does Not Have Malpractice Insurance

Almost all practicing attorneys, including all CELAs, carry significant amounts of legal malpractice insurance. If a CELA does something wrong ethically, they can be disbarred from ever practicing law again. If a CELA commits professional malpractice resulting in you suffering monetary damages, you can sue the CELA for monetary damages, which will generally be covered by the attorney’s legal malpractice insurance if you are successful in your lawsuit.

General Guidance About Using Non-lawyers for Legal Services

As I’ve said before, you’re not going to go to a general surgeon to have specialized brain surgery, or to a general dentist to have specialized dental surgery. Likewise, if you are seeking specialized legal services, such as Medicaid Asset Protection Planning, you want to seek out someone who is specialized in the exact legal area that you need assistance with. A CELA is the most qualified and specialized Elder Law attorney you can find, and someone you can completely trust as your Elder Law attorney or Estate Planning attorney. Evan H. Farr, CELA, CAP, is one of the foremost legal authorities in the country in the field of Medicaid Asset Protection and related Trusts. The Farr Law Firm helps protect seniors and their families by preserving dignity, quality of life, and financial security every day through our expert Medicaid planning services.

Trust the Experts at the Farr Law Firm for Medicaid Asset Protection Planning

If you have a loved one who needs nursing home care, but you are concerned that the $12,000 – $17,0000 a month that it costs in our area, now is the time to begin Medicaid Asset Protection Planning with a Certified Elder Law Attorney, such as Evan H. Farr. There are ways we can help, such as Medicaid Asset Protection and our proprietary Living Trust Plus® Asset Protection Trust.

It is never too late to begin your own Estate Planning, Medicaid planning, Medicaid Asset Protection, nursing home planning, or other long-term care planning with an experienced Elder Care attorney. The attorneys here at the Farr Law Firm are experienced Estate Planning lawyers, Medicaid planning attorneys, Medicaid Asset Protection experts, nursing home planning experts, and long-term care planning advisors. Whenever you’re ready, we’re here to help:

Northern Virginia Medicaid Planning Attorney: 703-691-1888
Elder Care Attorney Fredericksburg: 540-479-1435
Estate Planning Attorney Maryland: 301-519-8041
Estate Planning Attorney Near Me (in DC): 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.