Legal Question in Legal Ethics in California

Medi-Cal annuity bad choice

I purchased an fixed immediate annuity with 21,000 savings from a certified elder law attorney to shield my 21k from being counted as a Medi-Cal resource and making me ineligible for Medi-Cal. Before buying annuity I had a Medi-Cal zero share of cost monthly because I had property and sold it for the 21K. The annuity pays 100.00 per month for 38 years, a fixed payment, that cant be changed. The annuity has no cash surrender value.SOC increased to $558.00/month after Medi-Cal counted 100.00/monthannuitypayment as income, making me ineligible for the aged and disabled Medi-Cal program in California that I was qualified for before I sold the property and used proceeds to buy annuity. I could sell the annuity on the secondary market but would only get 10,000 or half of the 21,000 premium I bought it for. I could buy$75/monthprivatehealthinsurance with my100.00/monthlyANNUITYpayment which Medi-Cal would deduct from my income, again qualifying me for the medi-cal zero SOC/month. Since the attorney advised me to buy the annuity and it only increased my Medi-CalShareofCost and now my 21k is tied up for 38 years, does the attorney have any professional/ethical obligation to do anything since his advice didn't work well? Thanks


Asked on 1/05/08, 5:01 pm

1 Answer from Attorneys
Robert L. Bennett Law offices of Robert L. Bennett

Re: Medi-Cal annuity bad choice

Thanks for the well thought out statement of facts. It is appreciated.

I doubt very much that you could win a case for legal malpractice. Losing a case isn't malpractice, nor is giving the wrong advice, by itself.

You generally need some type of carelessness, which you do not have here. You need professional negligence, but that is not the issue here.

You also would need to show that the lawyer failed to have the skill and prudence of an ordinary lawyer under the same facts.

You might have been eligible for Medi-Cal before selling the property, but Medi-Cal would have claimed the property after your death. While the advice didn't work out the way you hoped for, I don't believe this rises to malpractice.

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Answered on 1/06/08, 9:04 am


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