Q - Is Medicaid Planning Legal?

Yes. However, if you are paying for the advice, the person doing the planning must be an attorney.  

Texas Human Resources Code Section 12.001 states that non-attorneys are prohibited from charging a fee for assisting or representing a person in obtaining Medicaid benefits from the department.  The penalty for violating this practice is a Class A Misdemeanor, punishable by jail and fine.

The Medicaid eligibility rules are complex and change frequently. It is important to consult with an attorney knowledgeable about this program to get accurate, thorough and reliable advice on your options.   Mistakes can be costly and information from non-attorneys is often inaccurate or incomplete.

Q - Are there things to be done that only an attorney can do?

Yes.  In order to protect a Medicaid applicant's pension for their spouse, it is necessary to file and prosecute a proceeding in court to obtain an order transferring the pension to the other spouse.  A non-attorney is not allowed to do this, and often the benefit of this proceeding is not even mentioned to the client by the non-attorney.  Attorneys are also the only persons who can legally prepare documents to protect your residence from Medicaid Estate Recovery.

Attorneys have in-depth meetings with clients to explore the options and strategies available to them.  They look at Medicare, Medicaid, Veterans benefits, long term care insurance, and available income and assets to help individuals and families plan for how to pay for long term care.  After meeting they develop a comprehensive written plan that explains the available options and a detailed guide to implement the plan specific to each individual client. Then, they provide ongoing, step-by-step assistance to guide clients through the process of safely and legally accessing Medicaid benefits. 

Attorneys should also have malpractice insurance. If a non-attorney planner is involved what insurance company would insure them for an act that is criminal?

Q - My investment advisor wants to sell me a "Medicaid Qualifying Annuity", saying that is all I need to do to qualify for Medicaid.  Is this true?

No. Unfortunately people are often sold annuities that can be detrimental to the Medicaid planning process.  Only the person selling the annuity benefits in this circumstance.  There is only one type of “Medicaid Qualifying Annuity,” and it is not an annuity that most financial advisors sell.  

Planning with an annuity is used by attorneys only after all other legitimate Medicaid planning has been exhausted.  In order to qualify for Medicaid benefits, your income and assets must be below specific limits. In some cases, particularly for married couples and disabled individuals under the age of 65, there are options to protect assets and at the same time bring your assets below the Medicaid asset limits. Protect yourself and your assets by consulting an elder law attorney for your planning.


You may want to have an attorney review your case for actions you may wish to pursue if any of the following situations apply to you:
If you have been financially damaged by a non-attorney illegally practicing Medicaid planning
If you have missed the opportunity to have your spouse's pension directed to you
If your house was not protected from Medicaid Estate Recovery
If you have been sold a useless non-qualifying Medicaid annuity for the purpose of qualifying for Medicaid

An attorney who belongs to this organization has agreed to review your case: 

Marian Rosen
Rosen & Spears
5057 Westheimer Road, Suite 760
Houston, Texas 77056