Could This Be a Case of Legal Malpractice?

Question from Flicker, Could This Be a Case of Legal Malpractice?

Answer from AI:

When an individual hires an attorney to assist with Medicaid planning, they expect competent legal advice that will help them maintain their eligibility for Medicaid. If an attorney establishes an Irrevocable Trust and fails to inform the client about the potential consequences, such as a 5-year transfer penalty that leads to the loss of Medicaid eligibility, this could potentially be a case of legal malpractice.

Understanding Legal Malpractice

Legal malpractice occurs when an attorney fails to provide services to a client with the skill, prudence, and diligence that a reasonable and competent attorney would under similar circumstances. To prove legal malpractice, the following elements must generally be established:

1. The attorney owed a duty to the client.
2. The attorney breached that duty by acting negligently or failing to act as a competent attorney would.
3. The breach of duty caused harm to the client.
4. The client suffered a financial loss as a result of the harm.

Specifics of the Case

In the scenario described, several key points need to be considered:

• Professional Duty: The attorney had a duty to inform the client of all material facts and potential consequences related to the establishment of the Irrevocable Trust.
• Breach of Duty: If the attorney failed to explain the 5-year transfer penalty associated with Medicaid eligibility, this could be seen as a breach of duty.
• Causation: The client’s loss of Medicaid eligibility must be directly linked to the attorney’s failure to inform them about the transfer penalty.
• Financial Loss: The client must have suffered a financial loss as a result of losing Medicaid eligibility.

Next Steps and Legal Advice

If you believe you have been a victim of legal malpractice, consider taking the following steps:

1. Document all communications and actions taken by the attorney related to the establishment of the trust.
2. Consult with another attorney who specializes in legal malpractice to get a second opinion on your case.
3. File a complaint with the state bar association if you believe the attorney acted unethically.

It is important to note that legal malpractice cases can be complex and require a detailed analysis of the facts and applicable laws. Therefore, it is highly recommended to seek personalized legal advice from a qualified legal malpractice attorney.

Resources and Legal Support

For more information on legal malpractice and to find support, you can visit resources such as the American Bar Association’s Lawyers’ Professional Liability page or your state’s bar association website.

Remember, each case is unique, and the information provided here is general in nature. It is not a substitute for personalized legal advice from a licensed attorney. If you believe you have a legal malpractice claim, consult with a legal professional who can evaluate the specifics of your situation and provide guidance on how to proceed.