Unauthorized Practice of Law

 

Unauthorized Practice of Law Definition

•     A person who provides legal services, who is not a licensed lawyer, or who is not otherwise authorized by law to provide legal services, may be engaging in the unauthorized practice of law (UPL).

•     UPL is illegal because of the harm people may suffer if they get bad legal advice.  Nonlawyers may be untrained and inexperienced in the law.  They are not officers of the courts, are not accountable for their actions, and are not prevented from using the legal system for their own purposes to harm the system and those who unknowingly rely on them.

•     In Nebraska UPL is a crime.

Practice of law Involves:

•  Neb. Ct. R. § 3-100

•   “Giving advice. . . to another. . . as to legal rights. . . relationship of trust or reliance . . .”

•   “Selection, drafting, completion, for another. . . documents. . . Affect legal rights. . .”

•   “Representation of another. . . formal administrative adjudicative proceeding. . . legal pleadings. . . record. . . judicial review”

•   “Negotiation of legal rights. . . behalf of another. . .”

•   “Holding oneself out to another as being entitled to practice law. . .”

UPL is a Crime under Neb. Rev. Stat. § 7-101

•    “[n]o person shall practice as an attorney or counselor at law. . . either by subscribing his own name, or the name of any other person, or by drawing pleadings. . . unless . . . previously admitted to the bar. . . “

•    “No such paper shall be received or filed in any. . .proceeding unless . . . endorsement of some admitted attorney. . .”

•    “It is hereby made the duty of the judges. . . to enforce this prohibition.”

•    “Any person who shall violate. . .guilty of a Class III misdemeanor.”

Not a violation of the UPL

•    Multi-jurisdictional Practice Rule (Neb. Ct. r. 305.5)

•     (c)  A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis. . .

•    General Information

•     It is not UPL for a person to give general information about the law or legal procedures to another person

•    Representing One’s Self

•     A person may represent himself or herself in court or any other legal proceeding

•     Exception: Entities cannot have member represent them, must be licensed attorney

 

Categories of UPL Violators

 

•“Full service” UPL Provider

•Out-of-State Lawyer

•Paralegal / Legal Assistant

•Small business

•Landlords

•Fake Lawyer

•Other

 

 

Examples

Individual claims he is  a “Junior United States Attorney” on stationery and maintains a LinkedIn and Facebook pages claiming to be an attorney. He sends demand letters with this title in connection with non-existent lawsuits.

 

Individual created stationery bearing the name of a law school clinic and  wrote letters on behalf of a tenant regarding payments due for damage caused to an apartment by the tenant. Also wrote threatening letters on behalf of a divorced dad regarding child custody matter.

 

Lawyer complained of out-of-state attorney whose actions included providing samples of zoning ordinances to block the  complaining attorney’s client from establishing his live adult entertainment business in Nebraska.

 

Examples

Mother attempted to represent her son in a criminal matter, appealing his conviction, filing motions and other documents, including a claim of prosecutorial misconduct by the County Attorney. She signed documents with “POA” after her name claiming power of attorney entitled her to represent her son.

 

“Minister” claiming to have paralegal training filed a pleading on behalf of an individual (without her permission) in a guardianship matter and forged her signature.

 

Individual attempted to “negotiate” a settlement in a family business matter, after counseling his “client” to withdraw her “fair share” of the funds in the family business’ bank account.

 

Examples

Payday loan company employee drafted pleadings and motions and appeared in county court  on behalf of the company against delinquent borrowers.

 

Paralegal who is the owner of  a business that  provides tax  consulting and translation services provided immigration law advice to persons seeking employment authorization and adjustment of immigration status.

 

Individual claiming to be “Administrator” of Statewide Common Law Grand Jury”  filed pleadings and motions on behalf of a respondent who defaulted on a $200,000 loan.

 

Reporting UPL

•      Most complaints are made by attorneys, judges, and victims

 

•      File UPL Complaint Form (https://supremecourt.nebraska.gov/sites/default/files/Administration/uplappa.pdf)

 

•      Contact the Nebraska Commission on UPL

•       Shela Shanks, Counsel on Unauthorized Practice of Law

Nebraska Supreme Court

Attorney Services Division

3806 Normal Blvd.

Lincoln, NE 68506

(402) 471-3091

Shela.shanks@Nebraska.gov

UPL Commission Functions

•      In-depth Investigations and Conduct evidentiary hearings

•      Make UPL Finding or Dismiss Allegations

•      Offer Consent Agreement

•      Petition the Supreme Court

•      Partner with the Attorney General

•      Issue Advisory Opinions

Review of Complaints by Commission

•      Reviews the Complaint

•      Investigates Complaint

•      Can Request Interviews with both parties

•      Can request more information

Actions Available to Commission

•      Determine person did engage in UPL

•      Have person agree in writing to stop

•      Can refer to appropriate law enforcement agency

•      Can ask Supreme Court to order person to stop conduct

•      Issue civil injunction against person

•      Can hold person in contempt

 

•      Can dismiss complaint if:

•      Not UPL

•      Isolated incident and won’t be repeated

•      No future public harm

•      No longer engaged in UPL or in NE

•      Complainer not cooperating with investigation

Recent Cases and Public Action Taken

•      Zapata v. McHugh, 296 Neb. 216 (2017).

•      District Court dismissed action because Plaintiff engaged in UPL as Plaintiff was an assignee of LLC

•      Plaintiff was litigating claim that benefited the LLC

•      LLC cannot represent oneself pro se and therefore Plaintiff was acting as an attorney would

 

•      Steinhausen v. Homeservices of Neb., 289 Neb. 927 (2015).

•      “ A legal proceeding in which a party is represented by a person not admitted to practice law is nullity and subject to dismissal.”

•      First National Bank of Gordon, Nebraska v. Phillips, Sheridan County District Court, CI 15-32

•      “Plaintiff’s motion to strike and dismiss. . . is granted. . . all pleadings filed by . . . [person engaging in UPL] are stricken from the record. . .”

Advisory Opinion 2012-001

•      Real Estate Licensee/Broker or title company can:

•      Prepare deeds

•      Prepare releases that do not affect judgment liens

•      Prepare Deeds of Reconveyance

•      Prepare Title Affidavits

•      Prepare closing statements and related documents

 

•      Nonlawyers should use standardized forms that have blanks to be filled in

 

•      So long as no knowledge or training as an attorney is needed

 

•      No advice can be given on meaning, validity, or legal effect of documents

 

Advisory Opinion 2010-001 re: Title Insurance Agents

CAN:

•      Provide or can tell people were to get blank purchase agreement forms and other forms

•      Prepare Title Affidavits including:

•      Marketable Title Affidavit

•      Scrivener’s Affidavit

•      Name Discrepancy Affidavit

•      Use an attorney to perform functions that if completed by unlicensed person would be UPL

•      Licensed abstracter can prepare report of what has been filed

•      Register of Deeds can explain requirements to file a document

CANNOT:

•      Assist or advise in preparation of purchase agreements

•      Assist or advise on purchase agreement addendums

•      Prepare Deed of Trust, Mortgages, or Easements

•      Abstracter cannot provide opinion as to priority or validity of title

•      Register of deeds cannot provide information regarding legal effects of any document present or on statutory requirements

Timothy P. Brouillette
Unauthorized Practice of Law Commission Member

ELDERLAW SEMINAR OUTLINE I. INTRODUCTION My name is Tim Brouillette, I am an Attorney Practicing Law in NP. I have been a practicing attorney for 21 years. I am here to speak on elder law issues, more specifically medicaid and Nursing Home Care and if we have time, planning to avoid Estate Taxes. I have been practicing Estate Planning and Elder Law for over 21 years now. Elder Law Experience: 1992 through present, helped to start and train guardians & conservators under State Court Administrator approved Guardian and Conservators Program 1992-1997 Faculty - Mid-Plains Community College Former board member & Vice Chairman Great Plains Regional Medical Center Hospital Ethics Committee Board member First National Bank of North Platte Board member and President, Nebraskaland Days 1994 through present-Various presentations to civic & legal organizations on elder law issues including Author, “Guarding against Guardianship and Conservatorship” Nebraska Lawyer, May, 1998 “Adavanced Directives, the legacy of Karen Ann Quinlin” Nebraska Traveler magazine APPEALS ON ELDER LAW ISSUES WITH THE DEPT OF HEALTH & HUMAN *+INTERRUPT TO ASK QUESTIONS AT ANY TIME-FREE LEGAL ADVICE II. GENERAL DEFINITIONS OF LEGAL TERMS USED IN ELDER LAW 1. WILL- What happens if we don’t have a will? (Does not go to State) 2. TRUST -basically 2 types A. Intervivos or Living Trust -revokable -irrevokable B. Testamentary Trust 3. POWER OF ATTORNEY-2 General Types A. Present Durable Power of Attorney B. Springing Durable Power of Attorney Power of Attorney for Health Care Power of Attorney for Financial 4. ADVANCED DIRECTIVES A. LIVING WILL-Statement-Karen Ann Quinlin B. POWER OF ATTORNEY FOR HEALTH CARE **WITHHOLDING OF NUTRITION & HYDRATION TUBES ON BOTH 5. PROTECTIVE PROCEEDINGS (COURT ACTION) A. GUARDIANSHIP-WARD MINOR OR ADULT B. CONSERVATORSHIP-PROTECTED PERSON MINOR OR ADULT III. MEDICAID-critical care nursing home costs 1. FEDERAL PROGRAM ADMINISTERED BY THE NEBRASKA DEPT OF HEALTH & H SER 2. GENERALLY AVAILABLE TO PAY LONG TERM NURSING HOME CARE FOR THOSE INDIVIDUALS WHO QUALIFY 3. SUPERVISED CARE NURSING HOME COSTS PER INDIVIDUAL RUNNING FROM $5,000.00 TO $7,000.00 PER MONTH INCLUDING MEDICATION. $60,000.00 TO $80,000.00 PER YEAR. CAN DRAIN AN ESTATE PRETTY FAST. -AVERAGE STAY FOR AN ALZHEIMER’S PATIENT IS 7 YEARS!!!!!, ($420K TO $560K THOUSAND DOLLARS) -AVERAGE STAY FOR NON-ALZHEIMER’S PATIENT ABOUT 3 YEARS ($180K to $240K) 4. LOOK BACK PERIOD (used to be none) 5 years 5. WHEN TO PLAN??? -WELL BEFORE A PERSON ENTERS A NURSING HOME (AT LEAST 5 YEARS) 6. HOW TO PLAN???-NURSING HOME PLANNING COMPLETELY DIFFERENT FROM ESTATE TAX PLANNING NOT GOOD ESTATE PLANNING TO AVOID TAXES -KENNEDY- KASSEBAUM BILL-EFFECTIVE JAN 1, 1997 A. NURSING HOME INSURANCE -EXPENSIVE - LIMITED ON COVERAGE ($80-$100 A DAY) -LIMITED ON DURATION (2YEARS MOST) B. GIVING PROPERTY AWAY DURING LIFETIME -$12,000.00 per year per person gift tax free C. PLACE PROPERTY IN TRUST -irrevokable trust- must be done 5 years before nursing home and may be challenged -living or revokable trust is subject to payment of nursing home care expenses -gifting to children who then start their own family trust If nursing home expenses needed within five years of children receiving gifts that they placed in trust, then they may withdraw funds to help If three years runs by and parents are not in nursing home, then medicaid cannot ask for funds back D. DO NOTHING AND TAKE THE RISK YOU WILL NOT END UP NEEDING SPECIALIZED CARE IN A NURSING HOME 7. WHAT TO DO IF NO PLANNING WAS DONE!!!!!!!! (JUST ENTERED NURSING HOME) A. EXEMPT PROPERTY $4,000.00 $1,500.00 CASH VALUE LIFE INSURANCE $3,000.00 BURIAL FUND BURIAL PLOT AUTOMOBILE HOME SPOUSAL IMPOVERISHMENT RULES B. Penalty Period Now Starts day application for medicaid filed. $100,000.00 given to kids 4 years ago. No money apply for medicaid. State will not help for 1 year (where do you get money?) IV. ESTATE TAX PLANNING $ 2 million in 2008-45% $ 3.5 million in 2009-45% $ No Estate Tax in 2010 $5 million in 2012- 2013?? 1. REVOKABLE TRUST FOR H&W 2. AB WILL WITH 50/50 SPLIT OF ASSETS (TESTAMENTARY TRUST) H&W 3. GIVE AWAY PROPERTY $12,000 PER YEAR/ PER PERSON 4. CHARITABLE REMAINDER TRUSTS OR GIFTS TO CHARITY OUTRIGHT

NEBRASKA LANDORD TENANT FORMS

APPLICATION FOR NEW TENANTS

The undersigned, in support of their application for rental of ____________________________________, North Platte, Nebraska, authorizes LANDLORD, its employees and agents to make inquiry of any of the individuals named in this application to include a background check with any credit reporting agency and authorizes the release of any and all information from any of the individuals named in this application together with any records of any credit reporting agency.

Name of Applicant(s): Date of Birth:__________________________________________________
Social Security #________________________________________________
Address:

Last three (3) previous addresses:

1.

Landlord and Landlord’s address:

Name:
Address: 
Period of time at above address:

2.
Name:
Address: 
Period of time at above address:

3. Name:
Address:

Period of time at above address:

Number of children . Names and Ages:


Employer:
Name:
Address:
How long employed:
Previous employer:
Length of employment:
Name of Banking Institution:

Dated this ______________ day of _____________________________, 20___.



Signed:
Applicant

Signed:
Applicant





LEASE AGREEMENT

THIS AGREEMENT made and entered into on the ________ day of _________________________, 20____, between LANDLORD, hereinafter referred to as "Lessor", and (LESSEE), hereinafter referred to as "Lessee", "Lessor" leases to "Lessee" the premises situated at 2001 Adams Street, in the City of North Platte, State of Nebraska, together with all appurtenances, on a monthly basis, commencing on the _____________ day of ___________________, 20___ for a period of ______________ months.

RENT
"Lessee" agrees to pay, without demand, to "Lessor" as rent for the demised premises the sum of $______________ per month in advance on the first day of each calendar month. The first month’s lease payment shall be due upon the signing of this lease and a like payment to be made on the first day of each month thereafter for the entire term of this lease. Said payments shall be mailed to "Lessor" at 6001 Baker Street, North Platte, NE, 69101.

SECURITY DEPOSIT
CHECK ONE
( )Upon the execution of this Lease, "Lessee" shall also deposit with "Lessor" an additional $_____________ as security for the faithful performance by "Lessee" of the terms hereof, and for payment of all damages sustained by the property while in "Lessee's" possession, to be returned to "Lessee", without interest, upon the full and faithful performance by "Lessee" of the provisions hereof and return of the property in the condition which it is in on the date hereof.

( ) Within _______ days of the execution of this Lease, "Lessee" shall deposit with "Lessor" an additional $_____________ as security for the faithful performance by "Lessee" of the terms hereof, and for payment of all damages sustained by the property while in "Lessee's" possession, to be returned to "Lessee", without interest, upon the full and faithful performance by "Lessee" of the provisions hereof and return of the property in the condition which it is in on the date hereof.

UTILITIES
"Lessee" shall be responsible for arranging for and paying for all utility services required on the premises as of the date this lease commences.


ALTERATIONS AND IMPROVEMENTS
"Lessee" shall make no alterations to the buildings on the demised premises or construct any buildings or make other improvements on the demised premises without the prior written consent of "Lessor."

ASSIGNMENT AND SUBLETTING
"Lessee" shall not assign this lease, or sublet or grant any concession for license to use the premises or any part thereof without the prior written consent of "Lessor."
“Lessee” will use the premises for residential purposes only.

MAINTENANCE
"Lessee" is solely responsible for maintenance to the premises during the term of this Lease. "Lessee" shall be responsible for keeping and maintaining the premises in a clean and tenantable condition including regular mowing, watering, and maintenance of the lawn and clearing the sidewalk and any driveways from ice, snow, and debris.
“Lessor” is responsible for the control of insect or animal infestation. “Lessee” is responsible for taking care of sporadic insect or varmint control on a day to day basis.
“Lessee” is responsible for day to day routine maintenance of air conditioning and heating units, including the changing of filters on a regular basis.

PETS
No pets will be allowed, unless approved by “Lessor” and “Lessee” agrees to pay an additional pet deposit.

LOUD PARTIES
No loud parties will be tolerated.

FIRE OR CASUALTY DAMAGE & RENTERS INSURANCE
"Lessor" hereby covenants for "Lessee" quiet enjoyment of said premises during the term of this Lease Agreement, and that if said premises shall be injured by fire or other cause, without fault or neglect of "Lessee", or their agents, servants, or employees so as to render said premises or any part thereof untenantable, a proportionate part of the rent reserved herein shall be abated until again made tenantable. In the event of a partial destruction of said premises during the term of this Lease Agreement, from any cause not the fault or neglect of "Lessee" as aforesaid, "Lessor" shall forthwith repair the same provided said repairs can be made within forty-five (45) days, but such partial destruction shall, in no way, annul or void this Lease, except that the "Lessee" shall be entitled to a proportionate deduction to be based upon the extent to which the making of such repairs shall interfere with the enjoyment of the premises by "Lessee." If such repairs cannot be made within forty-five (45) days or such repairs cannot be made under local ordinances, this Lease may be terminated at the option of either party. A total destruction of the premises shall terminate this Lease.
“Lessee” is responsible for maintaining a renter’s insurance policy covering the personal property of the “Lessee.”

DISCLOSURE OF INFORMATION
LEAD-BASED PAINT AND LEAD-BASED PAINT HAZARDS
Housing built before 1978 may contain lead-based paint. Lead from paint, paint chips, and dust can pose health hazards if not taken care of properly. Lead exposure is especially harmful to young children and pregnant women. Before renting pre-1978 housing, landlords must disclose the presence of known lead-based paint and lead-based paint hazards in the dwelling. Tenants must also receive a federally approved pamphlet on lead poisoning prevention.
“Lessor” has no knowledge of lead-based paint and/or lead-based paint hazards in the housing.
“Lessor” has no reports or records pertaining to lead-based paint and/or lead-based paint hazards in the housing.
“Lessee” acknowledges receipt of the federally approved pamphlet on lead poisoning and reading the above and foregoing disclosure by signing this lease.

CONDITION
Upon termination of this Lease Agreement, "Lessee" agrees to return the premises to "Lessor" in the same condition that the premises exists on the date of the execution of this Agreement.
Upon termination of this Lease Agreement, “Lessee” is expected to have the carpets professionally cleaned before leaving the premises.

INSPECTIONS
Upon reasonable notice (twenty-four hours) to “Lessee,” “Lessor” may inspect the premises for damage or disrepair, and have the premises repaired or cleaned at the “Lessee’s” expense.


DEFAULT & LATE FEES
Rent shall be due on the first day of each month. If rent due is not received by "Lessor" by the fifth day of each month, "Lessee" shall be in default and a late fee of $50.00 shall be owed by “Lessee” to “Lessor” for each month rent is paid after the fifth day of the month for which it is due. If any default is made in the payment of rent or late fees, or any part thereof, or if any default is made in the performance of or compliance with any other term or condition hereof, the Lease, at the option of "Lessor", shall terminate and be forfeited, and "Lessor" may re-enter the premises and remove all persons therefrom, or, in the alternative, "Lessor" may exercise any remedy available at law or in equity to "Lessors" in Nebraska on default or breach by "Lessee", including forcible entry and detainer. Also, any failure to remove or evict "Lessee" upon non-payment of rent or other default shall not in any way be construed as a waiver of any future breach or default on "Lessee's" part.

TERMINATION
This lease shall automatically terminate on the last day of the last month of its term, unless otherwise terminated by the parties. If the “Lessee” remains on the premises as a paying tenant after the term of this lease, then and in that event all provisions of this lease shall continue to bind “Lessee” except that the term shall convert to a month to month tenancy and the rent may be raised at the option of “Lessor.”

BINDING
The covenants and conditions herein contained shall apply to and bind the heirs, legal representatives, and assigns of the parties hereto, and all covenants are to be construed as conditions of this lease.

The parties have executed this lease at North Platte, Lincoln County, Nebraska, on the day and year first above written.

Before signing this agreement, “Lessee” may contact “Lessor’s” attorneys BROUILLETTE LAW OFFICE, PC, LLO, ATTORNEYS AT LAW, at (308) 532-1600 or an attorney of “Lessee’s” choice with any questions about the above and foregoing agreement.


LESSOR:


________________________________
LANDLORD

LESSEE:


________________________________

Printed Name:___________________


________________________________










THREE DAY NOTICE OF TERMINATION OF LEASE AGREEMENT
FOR NON-PAYMENT OF RENT


TO: TENANT

ADDRESS: 2001 Adams Street
North Platte, NE 69101

YOU ARE HEREBY NOTIFIED that you have failed to pay rent for the month of April, 2002, on the property located at 2001 Adams Street, North Platte, Nebraska, according to your written rental agreement. The total amount due and owing, including late fees of $20.00 is $370.00.
YOU ARE FURTHER NOTIFIED that if this rent is not paid in full within three (3) days from the date of the receipt of this Notice, the rental agreement for the above-described premises will terminate and you shall be required to vacate the premises immediately. If you then fail to vacate the premises, a lawsuit may be brought against you for (1) return of the premises; (2) rent and other damages; and, (3) costs and attorney fees to the extent allowed by law.
DATED this _____ day of __________, 20__.
Landlord,



By_______________________________
Timothy P. Brouillette
FOR: BROUILLETTE LAW OFFICE, P.C., LLO
P.O. Box 1605
North Platte, NE 69103-1605
(308) 532-1600

ATTORNEYS FOR LANDLORD

PROOF OF SERVICE

I certify that I served a copy of the above and foregoing Notice on the individuals

named above by:

_____ Hand delivery on this _____ day of _________, 20___, or by

__X_ United States first class mail, addressed as set forth above this 12th day of April, 20____, or by

_____ Posting such notice upon the door of the premises on this _____ day of __________, 20___.

_________________________________
Timothy P. Brouillette

Nebraska Used Car Lemon Law Tips

Sergei Lemberg, an attorney specializing in lemon law [link: http://www.lemonjustice.com/ftc_used_car_rule.php], is sitting in the guest blogger’s chair today. He’s outlining some of the ways that consumers with used car lemons can get justice.

I don’t know anyone who doesn’t feel at least a little bit of trepidation when they buy a used car. Always lurking in the back of your mind is the thought that you might just be buying someone else’s troubles. Unfortunately, although every state in the nation has a new car lemon law, few states have lemon laws covering defective used cars. That doesn’t mean that all is lost, however. There are a number of other ways consumers can take action if they find they’ve purchased a lemon.

The “New” Used Car – Some states’ lemon laws (but not Nebraska’s, unfortunately) include newer used cars in their lemon laws. So, for example, if the used car is purchased while the original manufacturer’s warranty is still in effect, the car is covered by the lemon law. The drawback is that the window of opportunity for pursuing a lemon law claim is fairly short, in that action needs to be taken within a timeframe that starts from the delivery date to the vehicle’s original owner.

Magnuson-Moss Warranty Act – The federal Magnuson-Moss Warranty Act typically covers written or implied warranties, as well as service contracts.

FTC Used Car Rule – The Federal Trade Commission requires dealers to post a Buyer’s Guide in every used car. It becomes part of the sales contract and overrides conflicting provisions in the sales contract. If the dealer doesn’t abide by the Used Car Rule, there can be cause of action.

Warrant of Merchantability – If there are fundamental problems with the used car, consumers can claim that the warrant of merchantability was breached. Unfortunately, though, the burden of proof is on the consumer to prove that the defect was present at the time of sale.

Express Warranties – Again, newer used cars may be covered by manufacturer’s express warranties, as well as verbal representations made by a salesperson or in advertisements.

UDAP – If the dealer has failed to disclose information about the vehicle, or is guilty of verbal deception, Unfair and Deceptive Acts and Practices laws can be used on behalf of consumers – even if the used car is sold “as is.”

MEDICAID IN GENERAL

I. Introduction.

This memorandum is intended to give the readers a brief understanding of Medicaid law and how it applies to the elderly. Because the laws and regulations governing Medicaid are ever changing, the readers should discuss their specific situation with their attorney before relying on the information contained herein.

Medicaid is a state and federally funded program administered by the Nebraska Department of Social Services which is designed to pay the cost of nursing home care for an elderly patient when they are unable to financially afford nursing home care. As the cost of nursing home care can run between $5,000.00 and $7,000.00 per month, there are many elderly individuals who are unable to afford this cost yet do require the supervision and assisted living arrangements that a nursing home provides. In this situation, the Department of Social Services, as the administrator of Medicaid, will investigate the elderly person's assets and determine if they have insufficient funds in which to provide for nursing home care. There are certain assets that the elderly person may have and that the Department of Social Services will not consider when determining whether the elderly person has insufficient assets in which to pay for their nursing home care. The assets that are not included will be discussed later in this memorandum. In addition if the elderly person has a spouse that does not need nursing home care, some of the assets and income of the non-nursing home spouse will not be considered in determining whether the spouse to be placed in the nursing home qualifies for Medicaid. These assets and their amounts will also be discussed later in this memorandum.

If an elderly person does qualify for assistance from the Medicaid program, generally his or her income or social security benefits will be paid directly to the nursing home. The remainder owed to the nursing home for nursing home care will be paid by Medicaid. The elderly person in the nursing home is
reserved $40.00 per month out of his or her income as a "spending allowance".



II. How Does One Qualify For Medicaid?

There are three elements that a person must meet before they can qualify for Medicaid and thus, have their nursing home care paid, in part, by state and federal funding. The first element involves status issues, the second element involves resources, and the third element involves income.

A. General Status Requirements.

1. The applicant for Medicaid assistance must be a
United States citizen.

2. The applicant must be a Nebraska resident. A
resident is defined as an individual living in
this state voluntary with the intent of making
Nebraska his or her home.

3. The applicant for Medicaid may not reside in a
public institution such as a regional center or
any Veterans Administration facility.

4. The applicant for Medicaid must not have deprived
him or herself of resources or income in violation
of Medicaid program rules. This topic will be
discussed below under III (Transfer of Assets).

5. The nursing home facility that the applicant
intends to reside in or has been residing in must
be certified by the Medicaid program.

6. The applicant must be age 65 or older, or if the
applicant is age 65 or younger, they must be
disabled or blind.



B. Resource Guidelines.

1. At the time the person applies for Medicaid
assistance, their total resources must be less
than the following:

(a) Single person - $4,000.00.

(b) Married couple who applies for Medicaid
for both spouses at the same time - $6,000.00


(c) Married couple who apply under the "Spousal
Impoverishment Program":

i. If the total amount of their assets is
less than $18,552.00; the non-nursing home
spouse may keep the entire amount plus
$4,000.00 for the spouse who is entering
the nursing home and applying for
Medicaid.


ii. If the total amount of both spouse's
property exceeds $18,552.00. The spouse
who is not entering into the nursing home
may retain one-half of said assets so
long as that one-half portion does not
exceed $92,760.00. Any amount beyond
$92,760.00 and the remaining half of the
total assets must be applied towards the
spouse's nursing home costs before
Medicaid will begin paying for said
spouse's nursing home costs.

2. It is very important to note that under Medicaid regulations, certain assets and their values are completely excluded from consideration as a resource in the formula outlined in paragraph 1 above. The following resources are excluded in making a determination of whether a person is eligible for Medicaid:

(a) Real property occupied as a home if the person
applying for Medicaid, his or her spouse, or a
dependent of the person applying for Medicaid
resides in the house. The house is also
excluded as a resource if the individual
entering into the nursing home plans on
returning back to the house within six months
of entering into the nursing home.

(b) Household goods and personal effects of a
moderate value used in the home. For example,
paintings by a Master would not be excluded
as a resource while a piece of antique
furniture in daily use at the home would be
excluded.

(c) One motor vehicle per person or per married
couple. A single person who is entering into
a nursing home must demonstrate that the car
is needed for employment or medical transpor-
tation. However, if one spouse enters the
nursing home, the non-nursing home spouse
may keep one motor vehicle regardless of its
intended use.

(d) An irrevocable burial trust for each person
funded with a maximum amount of $3,000.00
per person or $3,000.00 in burial insurance,
or $1,500.00 designated for burial either in
an account or in an insurance policy.

(e) $1,500.00 combined original cash value of
life insurance for each person.

(f) Business equipment, fixtures, or machinery
which is being used in a trade or business.

(g) Life estates in real property. However, any
income generated by the life estate must be
used to pay a portion of the nursing home
care.

(h) Land contracts which cannot be sold. For
example, if a Medicaid applicant has
privately sold land on contract to a third
party in return for $400.00 a month payments,
the $400.00 a month payment will go towards
the applicant's nursing home care, however,
the land will not have to be sold.

(i) A trailer or mobile home occupied as a home.

(j) There are other miscellaneous excluded
resources which are listed under HHS 496 NAC
2-009.02B as well as other regulations dealing with Medicaid.

C. Income Requirements.

1. Individuals in long-term care facilities:

Each individual is allowed to retain $40.00 per month of his/her income for personal needs. The remainder of his/her income is paid to the care facility. Medicaid will pick up the remaining balance of the nursing home care.

2. Married couples who have completed the spousal impoverishment process:

The community spouse (spouse who does not require Medicaid assistance or nursing home care) may retain all income which comes in his or her name regardless of the amount. If the community spouse's income is less than $1,254.00 per month, income from the spouse who requires Medicaid assistance is given to the community spouse to bring the community spouse's income to as close to $1,254.00 per month as possible. If the community spouse has a mortgage payment or pays rent, a formula is used which could raise the community spouse's income to as high as $1,918.00 per month.

III. Transfer of Assets.

So far we have discussed the eligibility, income, and asset criteria that a person must meet at the time they apply for nursing home assistance through the Medicaid program. If these were the only items that the Department of Social Services looked for as the administrator's of the Medicaid program, then it would be very easy for someone to qualify for Medicaid. All a person would have to do is transfer or gift out all their assets a week or two before they go into the nursing home and apply for Medicaid. Presumably, if they had nothing left, Medicaid would pick up the cost of the nursing home care. However, as with many government programs, it is not that easy. Medicaid laws and regulations are designed to disqualify someone who transfers assets that could have been used to pay their nursing home care. Therefore, certain transfers by a person which were made before such person applies for Medicaid may make that person ineligible for Medicaid and, therefore, that person must pay for their nursing home care without any state or federal assistance. The transfer that makes a person ineligible for Medicaid is called a "deprivation of a resource".

A. Rule Regarding Deprivation of a Resource.

A person applying for Medicaid will be ineligible
for assistance if he or she disposed of a resource for less than fair market value within 60 months (five years) of the date that person applied for Medicaid (look back period).


B. Period of Ineligibility.

If a deprivation of a resource occurred within the period of above-described, the individual intending to reside in the nursing home will be ineligible for Medicaid for a number of months depending upon the value of the resource that was transferred. The Department of Social Services will determine the value of the resource that was transferred and the divide that by the actual monthly cost of care in a nursing home at a private pay rate. That result will be the number of months that the individual will be ineligible for Medicaid beginning with the month that the person filed the application for assistance. For example, if an elderly widow gave her house to her son on June 1, 2005, and at the time of the transfer the house was worth $100,000.00, the private pay rate of nursing home care is $5,000.00 a month. The elderly widow applies for Medicaid on February 1, 2008. The elderly widow will be ineligible for Medicaid assistance in her nursing home care costs for 20 months after February 1, 2008

In the above example, if the elderly widow had transferred her home to her son on or before February 1, 2000, the transfer would not be considered a deprivation of resource and the elderly widow would more than likely qualify for Medicaid. This is because the transfer did not occur within the 60 month look back period from the time that the elderly widow applied for Medicaid in February of 2008.

C. Transfers Not Considered a Deprivation of Resource.

It is not considered a deprivation of a resource if:

1. The individual applying for Medicaid
transfers an asset to a trust established
solely for the benefit of the individual's
son or daughter who is blind or disabled.

2. The individual applying for Medicaid
transfers an asset to his or her spouse
under the spousal impoverishment regulations
(outlined below).

3. The individual transfers an asset to a
resource that is excluded, such as an
irrevocable burial trust, life insurance,
or other excluded assets indicated under
III B.

IV. Spousal Impoverishment Program.

The spousal improverishment program deals with a situation where one spouse requires Medicaid assistance in a nursing home and the other spouse does not. This situation will arise when
one of the spouses in the marriage requires nursing home care while the other spouse does not.

(a) If the combined assets (less the excluded
assets as previously described in this memorandum)
of both spouses are less than $19,348.00, the
spouse requiring the nursing home care is
eligible for Medicaid without reduction of assets.
However, if the combined assets are in excess of
$19,348.00, some of the assets must be reduced
or transferred as outlined below.

(b) If the combined assets are more than $19,348.00,
and less than $153,480.00, the Department of
Social Services as the administrator of the
Medicaid program will do an assessment of the
resources of the married couple during the month
the nursing home spouse enters the nursing home.
The non-nursing home spouse will be entitled to
retain one-half of the combined equity value of
all assets (including the excluded assets as
previously discussed) so long as that one-half
does not exceed $76,740.00. The remaining
one-half of the married couple's assets will
be used to pay the nursing home spouse's care.
Once the remaining one-half of the assets have
been dried up, Medicaid will begin paying for
the nursing home spouse's care.

In the above situation, after the application for
Medicaid is received, the non-nursing home spouse
will be given 90 days to transfer the
aforementioned assets in his or her name and out
of the name of the nursing home spouse.

NOTE: The married couple's family home in the
above situation is not considered an asset and
is excluded so long as the non-nursing home
spouse continues to stay there. Title to the
family home may remain in joint tenancy. However,
it may be a good idea to title the family home
in the non-nursing home spouse's name because
if the home is later sold while it is in joint
tenancy, one-half of the value realized after
the sale will become an asset of the nursing
home spouse and must be applied towards his or
her nursing home care.

NOTE II: The non-nursing home spouse may retain
all income which comes in his or her name
regardless of the amount. In addition, if
the non-nursing home spouse's income is less
than $1,254.00, the non-nursing home spouse
is entitled to the income received by the
nursing home spouse in order to bring his
or her income to the level of $1,254.00. If
the non-nursing home spouse has a mortgage
payment or pays rent, a forumla is used
which could raise the non-nursing home spouse's
income to as high as $1,918.00 per month when
adding in the nursing home spouse's income.



FINAL NOTE: As Medicaid law is always changing, it is very important to seek the advice of an elder law attorney before relying upon anything in this memorandum. This memorandum is not intended to give legal advice.

MEDICAID AND OWNERSHIP

This memorandum is intended to supplement the previous memorandum entitled "Medicaid Law and The Elderly". Before reviewing this memorandum, I would suggest that the reader review the general principles of Medicaid law in the memorandum entitled "Medicaid Law And The Elderly".

You will recall that a person may qualify for Medicaid assistance in the payment of their nursing home care if they have a total amount of resources which are less than $4,000.00 for a single person. (See Medicaid Law And The Elderly II B 1). You will also recall that certain resources are excluded from consideration when determining this $4,000.00 amount (See Medicaid Law And The Elderly II B 2).

I. Determining Who Owns The Asset.

The applicant for Medicaid assistance must have less than $4,000.00 in assets (less the excluded assets which are not considered) in order to qualify for Medicaid. The Department of Social Services, as the administrator of the Medicaid program, will look at the title or wording on the ownership of the asset in determining whether or not that asset will be included in the $4,000.00 limit. The following examples help to illustrate how the title to an asset for a legal contract may be important:

A. Jointly Owned Resources.

As a general rule, the words "and/or" or "or" appearing on a title or other legal contract denotes joint tenancy ownership. This means that either owner could sign and turn the asset to cash without the other's consent. Therefore, the total asset is considered available to either owner and if one of the owners is applying for Medicaid, the total value of the asset will be attributable toward him or her when determining whether he or she meets the resource guidelines.

B. Tenancy In Common.

The word "and" appearing on a title or other legal contract refers to "tenancy in common". This means that each
owner holds an undivided interest in the resource without rights of survivorship to the other owners. Only the proportionate share based upon the number of owners of the asset is available to each owner.

C. Payable On Death Or Beneficiary.

An asset that is titled or a legal contract that lists a beneficiary or a person that the asset is to be paid to upon the death of the owner will be considered the sole asset of the owner.

NOTE: In joint ownership and tenancy in common
ownership cases, the applicant for Medicaid may
prove to the Department of Social Services that
he or she is not the true owner of the asset, and,
the Department of Social Services will allow the
applicant to remove his or her name from the title
of ownership in order to reflect the true ownership.

Examples.

1. John Smith, a widower, titles a CD in his name and his son's name, jointly, with right of survivorship. Ten years later, the CD, now worth $30,000.00, is the only asset that John Smith has. Under Medicaid law, $26,000.00 of the $30,000.00 CD must be used to pay for John Smith's nursing home care before Medicaid will assist in the payment.

2. Assume the same example as number one above, however, John Smith titles the CD in his name "and" his son's name as "tenants in common". In that situation, John Smith will only have to apply $11,000.00 of that CD toward his nursing home care ($15,000.00 or one-half less $4,000.00 in excluded assets) before Medicaid will begin payment on his nursing home care.

3. Assume the same example as number one above, however, John Smith's son is the one that set up the CD. In this situation, John Smith would prove to the Department of Social Services that he did not contribute any money to the CD and he is not the "true owner". If John Smith is successful, his name will have to be removed from the CD and then he will qualify for Medicaid assistance in the payment of his nursing home care.

II. The Treatment Of Various Investment Vehicles Under Medicaid
Law.

A. Certificate of Deposit.

The entire amount of a certificate of deposit will be included as a resource in determining whether or not a person
will qualify for Medicaid. This is true regardless whether there are penalties for early withdrawal.

B. Mutual Fund.

The entire amount of the mutual fund will be included as a resource in determining whether or not a person qualifies for Medicaid. This is true even though there may be some penalty for early withdrawal of the mutual fund.

C. Stocks.

The entire amount of the stocks will be included as a resource in determining whether or not a person will qualify for Medicaid.

D. Life Insurance.

Term insurance is not included as an asset in determining whether someone qualifies for Medicaid. This is true because there is not "cash value" to a term insurance policy. However, the cash value of a "whole" or "investment" life insurance policy will be considered as a resource when determining whether or not a person qualifies for Medicaid. This is true because most (whole or investment) life insurance policies have a "cash value".

E. Variable Annuity.

The cash value of a variable annuity will be considered a resource when determining whether or not a person qualifies for Medicaid. This is true because at any point during the term of the annuity the annuitant may withdraw a portion or all of the funds that were placed in the annuity.

F. Fixed Annuity.

There are basically two types of fixed annuities available to an investor. The first type of fixed annuity is set up on a deferred basis and still has cash value sometimes called a single premium deferred annuity (SPDA). The second type of fixed annuity is immediately annuitized or paid out on an immediate systematic or monthly basis or any annuity contract that guarantees the payment to an annuitant of a sum certain for the remainder of his or her life. This type of investment is sometimes called an immediate annuity contract. The following discussion deals with how Medicaid law applies to these two types of fixed annuities:

1. A fixed annuity that is set up on a deferred basis and has cash value to the investor, sometimes referred to as a
single premium deferred annuity (SPDA), will be considered as a resource when determining whether or not a person qualifies for Medicaid. This type of annuity arrangement is similar to a certificate of deposit in that a lump sum is invested and earns interest over a time certain and no systematic payments are made to the investor pursuant to the annuity contract until that time certain expires. The reason this type of annuity is considered as a resource under Medicaid law is that the annuity has a "cash value" to the investor during the term of the annuity contract.

2. On the other hand, a fixed annuity in which a lump sum is invested that is immediately annuitized or paid out on an immediate systematic or monthly basis or any other immediate annuity contract that guarantees the payment to the annuitant of a sum certain for the remainder of his or her life, will not be considered an asset when determining whether or not a person qualifies for Medicaid**. This is true because under the annuity contract, the annuitant may not withdraw more than the fixed amount that he or she is entitled to. This type of investment vehicle is also called fully "annuitizing" an asset. This type of annuity has no real cash value to the investor which allows the investor to withdraw his or her initial investment with interest during the term of the annuity contract.

Concerning this type of immediate fixed annuity arrangement, it is very important to note that any payments made from the annuity while the person is in the nursing home care and while the person is being assisted by Medicaid will have to be assigned directly to the nursing home for the payment of that person's nursing home care. Any remaining amount owed will be paid by Medicaid. However, if the Medicaid recipient is married, and the annuity is owned by the non-nursing home spouse, the non-nursing home spouse will be entitled to 100% of the income received from the annuity.

**The Wisconsin Department of Health recently changed its policy and is now including most annuities as an available resource. Many financial companies are now willing to purchase and place a cash value on fixed annuities, and as a result, the annuity may be sold and used for nursing home expense. Nebraska Health and Human Services could change their policy in the future.

GUARDIANS AND CONSERVATORS

This information describes the general duties and obligations of guardians and conservators. If you have any questions regarding the performance of your duties you may contact our office.

If you have been appointed guardian you have charge of your ward's person. If you have been appointed conservator, you have charge of the protected person's property. If you have been appointed both guardian and conservator, you have charge of both the protected person and his or her property. The court has issued you letters of guardianship or conservatorship which specify the limitations placed upon you.

Both guardians and conservators are entitled to fees and expenses for their services. When you make your annual accounting to the court, you should file an application for fees. The court will then authorize a reasonable fee. You must not pay yourself any fees without first getting the court's approval.

If you or your ward move to a different address, you must notify the court in writing immediately. The court must also be notified if your ward dies.

GUARDIANS

As guardian, you have the duty to take charge of your ward's person and provide for his or her care, treatment, habilitation, education, support and maintenance. Your powers and duties include:

(a) assuring that your ward resides in the best and
least restrictive setting reasonably available and

(b) promoting and protecting the care, comfort, safety,
health and welfare of your ward.

A guardian may receive money payable for the support of the ward and apply it toward the ward's current needs. Any excess funds are to be conserved for future needs. If a conservator has been appointed, the ward's excess suns of money should be delivered to that conservator at least yearly. As guardian, you are not legally obligated to provide for the ward from your own funds.

If there is anyone who has a legal obligation to support your ward, you may institute legal proceedings to compel that person to do so.


As guardian, you will be required to file with the court an annual status report concerning the condition of your ward. You will also be required to file an account of any assets of the ward which are subject to your control, along with a certificate of proof of possession of all intangible personal property existing at the end of the accounting period.

Your accounting will show the amount of money you had at the beginning of the accounting period, all money received and spent, and the balance remaining at the end of the accounting period.

Upon termination of the guardianship, you must settle accounts with the ward or the ward's representative and turn over all assets to whomever is legally entitled to them. You should be aware that court approval is necessary before a guardianship is considered terminated.

Normally our office will send you a reminder concerning the deadlines for the filing of the various documents described above with the court. If you have any questions concerning the filing dates or the information contained within the above-described documents, please do not hesitate to contact our office.

CONSERVATORS

As conservator, you must take possession of the protected person's property. The court will normally require you to post a corporate surety bond for the full value of the protected person's estate. The amount of that bond will be reviewed by the court periodically to be sure it is adequate, and it may be increased or decreased.

The conservator is considered a "fiduciary" or one who holds something in trust for any other. You must observe the standards of care in dealing with the protected person's assets that would be observed by any prudent person in dealing with property belonging to another. A conservator should make only conservative, safe and insured investments.

As conservator you may not:

(a) mingle the protected person's assets with your
own

(b) make loans to yourself or a third person

(c) make any speculative investments.

Without prior court approval you may not:

(a) buy from nor sell to the protected person's estate

(b) invest in real estate

(c) allow any third party to profit from the protected
person's estate

(d) sell any real estate belonging to the protected
person.

As conservator, you are obligated to recover assets due the protected person and pay all reasonable and necessary expenses from his or her assets. You may apply to the court for an order of continuing support and maintenance, which will authorize you to spend a budgeted sum each month for the protected person.

You are not obligated to pay the expenses of the protected person from your personal assets. However, you must disclose to those with whom you are dealing that you are acting in the capacity of conservator.

Within ninety (90) days of your appointment as conservator, you must file with the court an inventory of the assets belonging to the protected person. You must provide a copy of the inventory to the protected person and to all other interested parties, including the bonding company.

In addition, you must make a full accounting to the court one (1) year after your appointment and once every 12 months thereafter. This accounting must contain an itemized statement of assets in your possession at the end of the accounting period. The accounting will show the amount you had at the beginning of the accounting period, all money received and spent, and the balance on hand at the end of the accounting period.

You must prove the existence of intangible assets, such as bank accounts or certificates of deposit, by attaching to your accounting a Certificate of Proof of Possession. These forms will be furnished to you by the court if you request them.

The accounting should be sent to the court along with the $5.00 filing fee. In addition, you must send copies of the accounting to all interested parties and the bonding company. You will file with the court a certificate of mailing showing these copies were mailed.

A hearing may be held to approve your accounting if you, another interested party or the court requests one. If you have questions about the inventory or accounting, you may contact our office for assistance.


When the conservatorship is ended, you must make a final accounting to the court showing all property received and disbursed and what you are presently holding. When the accounting has been approved, the court will enter an order directing the property to be distributed.