Clients Who Need Long-Term Care: Understanding Medicaid Eligibility for Your Clients & SCR 3.130 (1.1) Competent Representation

Long-term care planning is a concern for not just elder law practitioners, but also estate planning attorneys and many others. Lawyers With Purpose recently published the above-titled online article which discusses this very issue.

As the article states, “Long-term care encompasses a range of services designed to assist individuals who can no longer manage the essential activities of daily living. For estate planning clients, long-term care is a significant consideration.” If your practice concerns estate planning or you have a client that relies upon Medicaid benefits for the short, or especially, long-term, be mindful of Medicaid’s rules and regulations which are constantly changing, especially at the state level.

Additionally, there are professional rules of conduct considerations to keep in mind when dealing with Medicaid and long-term care benefit eligibility, and other similar types of regulation-heavy areas of the law. As the article discusses, there are many nuances and rules that the practitioner must know and follow regarding Medicaid eligibility.

1This article was originally published in the Hinshaw & Culbertson LLP “Lawyers’ Lawyer” Newsletter. Republished with permission. Visit www.hinshawlaw.com for more information.

Common Pitfalls in Medicaid Planning

  1. Failing to provide complete documentation.
  2. Misreporting income or assets due to misunderstanding eligibility rules.
  3. Missing deadlines for submitting additional information or appealing a denial.
  4. Overlooking the need for annual Medicaid recertification.
  5. Failing to stay current on Medicaid regulations that may change at both the state and federal level.

Accordingly, LMICK reminds you, as always, to keep in mind the Rules of Professional Conduct which are contained within SCR 3.130. For example, SCR 3.130 (1.1) (Competence), is a crucial Rule that every lawyer should adhere to. This Rule provides, “A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Thus, if you have little or no knowledge about Medicaid’s rules regarding long-term care eligibility, or whatever your particular area of law your case involves, always be mindful of this Rule (and others) when or if you agree to accept the representation of a client. As we often say, don’t dabble, and certainly not in areas with lots of regulations and places to fall short in competency.

Also, be sure not to accept an advance fee or any payment from a client to simply educate yourself on a specific area of the law. Exhausting the client’s advance fee or payment for your services before the case even gets off the ground will require further payment from your client and likely lead to possible issues within the representation.

As a hypothetical example, a lawyer may have a client who is the guardian of a ward who is seeking long-term care benefits through Medicaid for the ward. However, two years before the application for long-term care benefits was filed with Medicaid or sought, the ward transferred a piece of property to a nephew for less than fair market value which has violated Medicaid’s “Five-Year Look-Back Period.” Unaware that Medicaid has a “Look-Back” period or what that even means, the lawyer has the client execute an advance fee agreement in accordance with SCR 3.130 (1.5) (Fees). The lawyer then expends the full advance fee by educating himself/herself about this area of law with zero to little work actually done to achieve the client’s goals or to advance the client’s case. The lawyer now faces the daunting task of asking the client for more money for their services, and still faces the uncertainty of what the legal issues before them may be since this area of law is so unfamiliar to them. Accordingly, always be mindful of the professional obligations that govern us attorneys here in the Commonwealth.

Questions? Contact Jared Burke (burke@lmick.com) for more information.