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New York State Bar Challenges “Granny Goes To Jail”

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Last year the U.S. Congress, concerned over the rising cost of long-term health care, adopted legislation intended to restrict the availability of information about Medicaid coverage for such care. The new enactment, frequently referred to as the “Granny’s Lawyer Goes to Jail” law, declared that any person who counsels or assists another person to make transfers of assets in order to qualify for Medicaid may have committed a crime. The person actually making the transfers will not have committed any wrongful act, and will not qualify immediately for Medicaid; nonetheless, the professional adviser who describes the completely legal choices may be severely sanctioned.

Last week, the New York State Bar Association announced that it has filed suit in an attempt to invalidate the new law. The lawsuit, filed in Albany, New York, asks the federal district court to declare that the law is unconstitutional because:

  • it violates the First Amendment protection of free speech, since it prevents attorneys from advising clients about legal alternatives and the effect of those actions, and
  • it is too vague to adequately warn lawyers and others about what activities might be prosecutable.

In a news release describing the filing, New York State Bar President Joshua Pruzansky observes that “lawyers are ethically committed to providing advice when questioned by our clients.” The Granny’s Lawyer Goes to Jail law sets a dangerous precedent, notes Pruzansky: “Does Congress next make advice to those faced with an ordinary tax audit criminal?”

The New York lawsuit will be prosecuted by one of the state’s largest law firms, the prestigious Nixon Hargrave Devans & Boyle, LLP. The firm is donating its services for the litigation. Other state, local and national bar associations have considered filing similar actions, and some may now join the New York lawsuit.

Although the new law had a chilling effect on many lawyers, there have been no prosecutions filed since its enactment. Many practitioners have continued to provide advice to clients, relying on the popular belief (reinforced by a Congressional Research Service review) that the law is unconstitutional and unenforceable.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.