Part 1: Celebrity Series – Guardianship and Conservatorship (Amanda Bynes)

Part 1: Celebrity Series – Guardianship and Conservatorship (Amanda Bynes)

A “guardian” of an adult is a person appointed by the court who is responsible for the personal affairs of an incapacitated adult, including responsibility for making decisions regarding the adult’s support, care, health, safety, habilitation, education, therapeutic treatment, and residence.  A ”conservator” is also appointed by the court, and is responsible for managing the estate and financial affairs of an incapacitated person.  In some states, a “conservator” is called a “guardian of the estate” and the “regular” guardian is called the “guardian of the person.”

When we think of legal guardianship or conservatorship, several scenarios typically come to mind: an elderly parent with dementia; an adult who has been severely injured and can no longer take care of himself; and, increasingly (especially for troubled celebrities), young adults who are making unsafe, dangerous, or destructive decisions – decisions that often involve alcohol or drug abuse, quite possibly along with an underlying mental illness. This latter category has made headlines in recent years thanks to celebrities such as Britney Spears, Lindsay Lohan, and, most recently, Amanda Bynes.

The key question is whether the person’s behavior is bad enough to justify taking away her personal liberties and overruling her individual rights. In this series, we will explore these celebrities and their loved ones’ efforts to obtain guardianship and conservatorship to protect them from themselves.

Part I: Amanda Bynes

Amanda Bynes was born on April 3, 1986 in Thousand Oaks, California. She is the youngest child of Lynn, a dental assistant and office manager, and Rick Bynes, a dentist.

In 1993, Bynes attended a comedy camp, and began professionally acting at the age of seven. She appeared in commercials, stage productions, and television shows, landing her own hit variety program, The Amanda Show, on Nickelodeon when she was 13. She subsequently went on to star in a TV series, What I Like About You, and several movies, including What a Girl Wants, Hairspray and She’s the Man. Her last film credit was 2010′s Easy A, which starred Emma Stone. Since then, she has publicly stated that she is retired from acting.

Her legal troubles began in March 2012, when she was stopped and ticketed by police for talking on a cell phone while driving. A month later, she was arrested and charged with driving under the influence after side-swiping a police car in West Hollywood. In September 2012, Bynes was charged for two alleged hit and run incidents, one occurring in April and the other in August. The hit and run charges were dismissed in December 2012 following a financial settlement between Bynes and the victims. Bynes’ driver’s license was suspended by the California Department of Motor Vehicles and she was cited for driving with a suspended license, and her car was impounded. In May 2013, Bynes pleaded no contest to the charge, and was sentenced to three years probation. The charge for driving under the influence is still pending.

In April 2013, Bynes announced via Twitter that she has an eating disorder.

In May 2013, Bynes was arrested at her home in Manhattan for criminal possession of marijuana, tampering with evidence, and reckless endangerment.  Following her arrest, Bynes underwent a psychiatric evaluation at a hospital before she was processed at the police station. She said on Twitter that she had been sexually harassed by the arresting officer, but the police department has denied the accusation.

Last week, Bynes was hospitalized and held for an involuntary mental health evaluation after allegedly starting a small fire in the driveway of a stranger’s house in Thousand Oaks, California. During the fire, she reportedly ignited her pants and doused her pomeranian dog with gasoline.  After fleeing the scene, she entered a local convenience store, entering the employees-only section behind the counter and attempted to wash her dog before being forced to leave. Bynes was shortly thereafter apprehended by authorities.

Her family has become increasingly concerned with her erratic behavior and has expressed that she might be suffering from schizophrenia. “Amanda has heard voices for years, and was concerned she was being spied on via smoke alarms and clocks in her home,” her parents said. “She would cover electronic items because she believed that was the only way she wouldn’t be spied on. It’s an extremely sad situation, because Amanda just refuses to get help.”

Bynes’ parents recently met with lawyers to explore the possibility of getting a conservatorship in California. They were told they’d most likely be unsuccessful because the actress didn’t meet the state’s strict criteria. They were advised that even as disturbing as her behavior is, it’s very unlikely that a judge would sign off on a temporary conservatorship because “Conservatorships are very hard to get, and being mentally ill and addicted to drugs isn’t enough. Amanda hasn’t ever been to rehab or ever agreed to see a mental health professional.” When Bynes’ parents confronted her several months ago with their concerns, she left Los Angeles and moved to New York, leaving their relationship extremely strained.

Bynes’ parents face significant legal obstacles if they continue to pursue a guardianship and conservatorship for the troubled actress, and her recent move to New York City has made the process even more difficult for them. Under New York law, Bynes could have the option of having a jury of her peers decide if she is in need of having her parents take control of her life. In the California courts, a judge signs off on the conservatorship. The thought of having a public jury trial to determine if Bynes is unable to take care of herself — and the media firestorm that would ensue — gives her parents cause for concern.

Under the New York state Mental Hygiene Law Article, 81, a family member typically files to be appointed as the guardian, and the person in need of it is called an “Alleged Incapacitated Person.”  While the petition is pending, the judge can appoint, on a temporary status, a guardian who can be given authority over the person’s needs and finances. Bynes’ parents “would want control over her person and finances,” family sources say. “They wouldn’t want to be paid for their services, and this isn’t about getting access to Amanda’s money. Their first concern is getting her to a mental health professional, so she can be properly diagnosed and begin the appropriate treatment.”

Guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period of time.  Once established, it can be difficult to revoke.  Therefore, guardianship should only be used as a last resort.  There are times when a person might need a guardian, but can be served in a less restrictive way.  Here are some alternatives to guardianship:

  • A Durable General Power of Attorney authorizes your Agent, sometimes called an Attorney-in-Fact, to act on your behalf and sign your name to financial and/or legal documents.  The Financial Power of Attorney is an essential tool in the event that, due to age, illness, or injury, you are unable to carry on your legal and financial affairs.  Having a Financial Power of Attorney will generally avoid the need to go through the time-consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which process is subject to ongoing court supervision.
  • An Advance Medical Directive, incorporating a Medical Power of Attorney, authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so, as certified by two physicians.
  • A Living Trust is a legal entity which is capable of owning financial assets, real estate, and/or other property. A living trust is a trust that comes into existence during your lifetime. The main feature of a living trust is that the trustee is not accountable to the court, and therefore not subject to probate. A Conservator, on the other hand, is accountable to the court and subject to ongoing probate for the life of the Ward. Most people therefore use a living trust as their primary estate planning tool in order to make things easier for their trusted loved ones by avoiding the time and complications of probate.

In the next part of this series, we will discuss Britney Spears, whose father has been her court-appointed conservator since 2008. Ironically, Spears records albums, performs worldwide, and is one of the most recognizable celebrities in America. Yet while she is under conservatorship, she does not have the right to make financial or legal decisions for herself.

If you have an incapacitated family member and you would like to talk about your options, call 703-691-1888 to make an appointment for a no-cost consultation at The Fairfax Elder Law Firm of Evan H. Farr, P.C.



Fictional Lawyer Face-off: Atticus Finch vs. Matlock


In this new feature, Bitter Lawyer pits two great lawyers from Imaginationland against each other in a ruthless fight to the disbarment. – Ed.


Atticus Finch
Source: To Kill a Mockingbird, 1960 novel by Harper Lee; 1963 film adaptation, portrayed by Gregory Peck.
Jurisdiction: Maycomb County, Alabama, fictional small town in the deep south.

Ben Matlock
Source: “Matlock”, TV Series airing from 1986-1995, portrayed by Andy Griffith (now playing in a nursing home rec room).
Jurisdiction: Fulton County, Georgia, real county with Atlanta as its seat.


Atticus Finch may be the most respected fictional lawyer of all time, and possibly the most respected fictional PERSON of all time this side of Superman. In 1997, the Alabama State Bar erected a monument to Finch at the Old Courthouse in Monroeville, author Lee’s hometown. In 2003, the American Film Institute named Atticus Finch the greatest hero in American movies, making him roughly as admirable as #1 villain honoree Hannibal Lecter is evil.

Much like his courtroom style, Matlock’s legacy is less stuffy and more populist: You don’t get to nearly 200 episodes of network television without winning over lots of hearts and minds. And before you go disregarding that legacy saying “well that was in the old days before the Internet and Netflix and cable series sweeping the Emmys!”, note that Cleveland NBC affiliate WKYC-TV aired two-hour blocks of Matlock instead of its regular Thursday night lineup for two weeks last March, winning better ratings in some time slots. If you can hear Abe Simpson saying “Maaaaatloooooooock” in your head, you gotta admit this guy’s got the stuff.


This one goes to Matlock handily. Matlock has virtually never lost a case (see Ethical Issues), and often not only gets his client off but reveals the true guilty party in the process.

Although we’ve only got a sample size of one for Atticus Finch, it’s a loss. Finch puts in a valiant effort to defend his client Tom Robinson, a black man accused of raping a white woman, getting a Matlockian on-the-witness-stand breakdown out of the accuser. Finch even puts in some extracurricular representation for his client by talking down an angry mob that wants to lynch him. But Finch’s efforts are in vain when the racist jury convicts Tom, who then is shot and killed trying to escape prison.

So, yeah, Matlock gets YET ANOTHER WIN for this category.


Here’s where Matlock falls behind paragon-of-legal virtue Atticus Finch. Matlock gets it done, all right, but through ridiculously ill-advised and illegal methods like stealing evidence from crime scenes to late introduce as a fun courtroom surprise. TV-land courtroom procedure is obviously of a different kind, but that’s a little out of hand, no? And if his ROUTINE ethics-schmethics approach doesn’t bug you, note that the one time Matlock DID lose a case it was because he realized his client was guilty, so he set up her best friend to take the fall, knowing it would force her to confess. The only client Matlock can be trusted to vigorously represent is DRAMZ.


This one comes down to personal preference. They’re both Southern lawyers, but where Finch tries to makes his own style of Big-City intellectual gravitas appeal to the backwoods South, Matlock forces aggressive folksiness upon the least-Southern Southern City. Are you more “Southern Man” or “Sweet Home Alabama?” Then you know your answer.

But even without calling the Mason-Dixon Line Draw there, a clear winner emerges:


Because Atticus Finch makes lawyers strive to be better, to live up to this wonderful idea that a LAWYER could not only be a good guy, but the greatest hero of all. And Matlock makes us justify wearing cheap suits to court and bending the rules to keep up our winning streak.


(image: A 3d generated professional boxing ring front via SHUTTERSTOCK)

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Ask the Expert – What do I Need to Know about Medicare’s Open Enrollment Period and the Affordable Care Act?

I read that the Medicare Open Enrollment Period is October 15- December 7, 2013. I am new to this and want to make sure I don’t miss anything. What do I need to know? Please see all my questions below in blue. Thanks!

Q. What is the Medicare Open Enrollment Period?
A. Medicare beneficiaries have the option to enroll in a Medicare Advantage plan (or switch plans) during the annual six-week open enrollment period. The Medicare Open Enrollment period for Medicare Advantage Plans (Part C) and Prescription Drug Coverage Plans (Part D) is from October 15th through December 7, 2013. Any change you make during the Open Enrollment period will take effect on January 1st, 2014.

Note: If you decide to stay with your current plan there is no further action required to renew it. Remember that if you don’t use this window of opportunity, you cannot make any changes to your coverage before October of the next year.

Q. How can I plan for Open Enrollment?
A. While Open Enrollment may seem a long time off, it will quickly be upon us.  Before Open Enrollment starts, here are a few things you should do to prepare and educate yourself on the changes you may or may not need to make to your Medicare Supplemental Insurance plan this year.
•    Call your doctor and schedule some of the preventative, no-cost health screenings and tests that are available for Medicare beneficiaries;
•    Take an inventory of your current prescription regimen and decide if your coverage is sufficient for the medicines you need;
•    Review plans and policies that are available in your area and decide if changing plans will save you money and better meet your needs.

To help with the planning, below are some important Medicare Open Enrollment Period dates:

-September 1-30, 2013    Review any notices from your plan about changes for the next year and compare plans to find one that meets your needs.
-October 15, 2013    Open Enrollment begins. This is the first day you can change your Medicare coverage for next year. It begins is the one time of year when all people with Medicare can make changes to their health and prescription drug plans for the next year.
-December 7, 2013    Open Enrollment ends. In most cases, December 7 is the last day you can change your Medicare coverage for next year.
-January 1, 2014    Your new coverage begins on January 1, 2014, if you switched to a new plan. If you stay with the same plan, any changes to coverage, benefits, or costs for the
new year will begin on this day.
-January 1–February 14, 2014    Between January 1–February 14, if you’re in a Medicare Advantage Plan, you can leave your plan and switch to Original Medicare. If you switch to Original Medicare during this period, you’ll have until February 14 to also join a Medicare Prescription Drug Plan to add drug coverage. Your coverage will begin the first day of the month after the plan gets your enrollment form.

Q. When deciding on a plan that is right for me, what do I need to know about the Affordable Care Act (ACA) if I have Medicare?
A.    Medicare isn’t part of the Health Insurance Marketplace established by ACA, so you don’t have to replace your Medicare coverage with Marketplace coverage.  No matter how you get Medicare, whether through Original Medicare or a Medicare Advantage Plan, you’ll still have the same benefits and security you have now. You won’t have to make any changes.

Below are some positive ways Medicare beneficiaries are impacted by the ACA:
•    Medicare covers certain preventive services, like mammograms or colonoscopies, without charging you for the Part B coinsurance or deductible. You also can get a free yearly “Wellness” visit. Read our blog post “Are You Taking Advantage of the Free Preventative Services Provided Under the ACA?” for more details.
•    If you’re in the donut hole, you’ll also get a 50% discount when buying Part D-covered brand-name prescription drugs. The discount is applied automatically at the counter of your pharmacy—you don’t have to do anything to get it. The Donut Hole will be closed completely by 2020.
•    Your doctor gets more support. With new initiatives to support care coordination, your doctor may get additional resources to make sure that your treatments are consistent.
•    The ACA ensures the protection of Medicare for years to come. The life of the Medicare Trust fund will be extended to at least 2029—a 12-year extension due to reductions in waste, fraud and abuse, and Medicare costs, which will provide you with future savings on your premiums and coinsurance.

Read our blog post, Happy Anniversary to the ACA for more details on what the ACA means for seniors.

Q. Before I decide on a plan, one last thing. You mention in many of your articles that nursing homes in Northern Virginia cost $12-15,000 a month. That would be disastrous for my family, should my husband or I need long-term care in the future. Do any of the Medicare plans out there cover long-term care, at all?
A. It is important to understand that Medicare does not pay for long-term care. At most, Medicare covers 100 days of short-term rehabilitation that may take place in a skilled nursing facility. Read our recent blog post “Is Medicare Enough to Cover Mom’s Nursing Home Stay? ” for more details.

Just as you are planning for the Open Enrollment Period, you should plan for your future and for your loved ones. If you have a loved one who is nearing the need for nursing home care, call The Fairfax Medicaid Asset Protection Law Firm of Evan H. Farr, P.C. at 703-691-1888 to make an appointment for a no-cost consultation.

Poetic Justice: Bar Exam Takers


Over the next six weeks we will be featuring our favorite selections from the book Poetic Justice: Legal Humor in Verse by JD Dupuy and ML Philpott. Today’s selection is for those taking the bar exam next week.

Bar Exam: A Mental Conversation with Fate

And now, the greatest test of all,
The big event – no time to stall,
My future lies in one exam,
OH GOD, I need more time to cram.

Inhale. Exhale. One breath at a time.
You’ve studied hard – you’ll be just fine.

My heart is beating in my ears,
I’m going to need a new career,
There’s no way I’ve done enough.
It’s not my fault! There’s just so much!

You know it all, inside and out,
It’s go-time now, forget your doubt.

Multistate. Essays. Woe unto me.
(At least I passed the MPRE.)
Fear hits me like a tsunami.
I’m blacking out! I want my mommy!

Go ahead and hit the floor.
When you come to, here’s what’s in store:
Somehow you’ll pass (your score will do),
Like plenty of morons who came before you.

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Caption This! (July 25, 2013)


What in the Bitter Lawyer is going on here?

Put your lawyerly wisdom to the test and post a comment below or on Facebook with a witty, hilarious, or brilliant caption to this comic, courtesy of And keep it clean(ish) and, y’know, respectful.

The editor’s pick will be announced next week, and then we’ll post the comic with the winning caption on Facebook.

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Bully Porn Addict Sues Apple


Don’t get me wrong, I generally applaud anyone suing Apple. I think they are pushing intellectual property law to the point where it limits healthy competition and will eventually destroy America’s competitive edge. (And, hey, republicans if you are looking to get more youth in your ranks, this might be a good issue for you. You are supposed to support the free market and capitalism, right?) But that’s a rant for another day. Because, today, I’m defending Apple. Partly, because the lawsuit is so absurd, but also because I’m really sick of lawsuits that serve no purpose but to bully people and/or companies around.

So, first the facts, Chris Sevier recently decided to sue Apple, because they . . . wait for it . . . allow porn to be viewed!!! On like . . . ALL OF THEIR DEVICES! Apparently, he missed the whole point of the internet. He claims that in allowing minors to have access to the internet, Apple is in violation of the Tennessee Code Annotated section 39-17-911.  Which says you can’t give pron to minors. Makes sense.

So, if he were to win, it would mean that providing someone with a device that can access the internet is giving them porn. And his lawsuit seeks to put the burden on the company selling the evil internet accessing device to make sure young, impressionable minors can’t access boobies, less the company be criminally liable and the youth . . . have impure thoughts.

If this were to actually work, it would be approximately the dumbest thing ever. Tons of other totally unsexy websites would accidentally get trapped in the filter. Because that’s what always happens. In grade school I did a paper on the Elephant Man and all the websites about the guy were blocked. Which, in retrospect, would be a really awesome name for a pron star.

Also, you would have the “well, is Victoria Secret allowed?” debate. And of course putting the burden on companies creates a huge strain on them to try and figure all this out. It also subjects them to massive liability. I mean, come on, Apple’s crap devices is are already expensive enough!

Mr. Sevier’s complaint states that he will happily withdraw his lawsuit as soon as Apple starts sending out their dirty little devices with a brand spanking new chastity belt. Which means, of course, that it’s an attempt to bully and nothing else. I mean no reasonable human being would actually consider making this a law. So, Mr. Sevier is hoping that Apple will throw up their arms and think that it’s easier to put some crappy filter on their next ipone3240983 than deal with his lawsuit.

I see this crap all too often. Some lawyer who never got to be the big kid on the playground pushing everyone around on the account that he or she was just too much of a worthless dork, decides he can finally live out his dull bully dreams in the form of litigation. So, he files some dumb lawsuit and hopes that it’s just too costly for a company to not do what he says.

Of course, only lawyers bully to limit the world’s access to naked flesh. So, Thanks Mr. Sevier, this is why people hate lawyers.


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Caption This! Winner (7/22/2013)

New to Bitter Lawyer? Start here, or dig into the archives!

Think you’re funny? Send us your stuff, and maybe we’ll use it!

Why James Gandolfini’s Will is a “Tax Catastrophe”- How You Can Avoid the Same Fate

Last fall, our newsletter featured a series of articles entitled “Lessons Learned from Estate Planning Mistakes of Celebrities,” demonstrating why probate is such a nightmare and lessons that can be learned from the costly mistakes of celebrities. Celebrities, including Whitney Houston, Amy Winehouse, Etta James and Michael Crichton, who made estate planning mistakes, were explored. We will now continue this series with James Gandolfini, who passed away last month, leaving his heirs $70 million and a hefty tax bill.

James Gandolfini was born in Westwood, NJ in 1961. He began his acting career in New York theater, where he got his first major role on the stage in the Broadway revival of “A Streetcar Named Desire” with Jessica Lange and Alec Baldwin. James’ breakthrough role was his portrayal of Virgil the hitman in Tony Scott’s True Romance (1993), but the role that brought him worldwide fame and accolades was as complex Mafia boss Tony Soprano in HBO’s smash hit series “The Sopranos” (1999). He died unexpectedly of a heart attack last month in Rome at age 51.

The star’s biggest mistake is that he didn’t have even have a Living Trust, so his Will was filed publically in court (view a PDF of his Will) and has to go though the nightmare of probate in New York.  New York has a very detailed probate system set forth in both the state law and the court rules. As it is in most states, probating an estate in New York can be time-consuming, taking up to 2 years to complete. It can also be expensive, and can take anywhere from 3%-8% of your assets away from your beneficiaries, which doesn’t include estate and income taxes that may be due and payable during the course of the probate administration. Compare this with the cost of settling a Revocable Living Trust, which will range anywhere from less than 1% to 5% of your assets. Lastly, as you can see from all the information that is already readily available about Mr. Gandolfini’s estate, probate matters are part of the public record allowing anyone to find out the size, contents and beneficiaries of the estate.

Besides forcing his loved ones to endure the horrendously expensive and time-consuming nightmare of probate, it is certainly eyebrow-raising to see that he left only 20% of his estate to his wife, Deborah Lin, 30% to each of two sisters and 20% to his baby daughter Liliana, who was born in October 2012.  His 13-year old son, Michael, was left an insurance trust worth $7 million, and all of his jewelry and clothes. It’s not known whether Gandolfini put any other assets into the trust for Michael in addition to the life insurance policy.  According to Gandolfini’s long-time business manager, Valerie Baugh, “Since Michael is so well provided for by the trust, he doesn’t need the court to appoint a legal guardian to protect his interests as the case winds through the probate process.”

For a character who made millions spurning the government on “The Sopranos,” it is ironic that in death, the IRS will likely claim almost half of the actor’s fortune.  Because of Mr. Gandolfini’s failure to do appropriate Estate Planning and Estate Tax Avoidance planning, the actor’s estate — valued at approximately $70 million – will likely have to pay over $30 million in federal and state Estate Taxes. The total Estate Tax due will be due a mere nine months after Mr. Gandolfini’s untimely death.  In all likelihood, significant assets will need to be sold to generate liquidity to meet this Estate Tax bill.

How could this have been avoided?

  • He could have left his wife a larger portion of his estate, either outright or in a trust which qualifies for the marital deduction.  Federal tax law allows an unlimited transfer of property to a surviving spouse without imposing any estate tax. This is a result of the “unlimited marital deduction.” In addition to the unlimited marital deduction, Federal tax law allows every individual to transfer a specific amount tax-free at death to a beneficiary or beneficiaries other than a spouse. This amount, called the “exemption equivalent amount,” is currently $5,250,000.
  • For high net-worth married couples like the Gandolfinis, a very basic way to minimize Estate Taxes would have been to establish an estate plan so that upon the death of the first spouse a “Family Trust” (also called a “Credit Shelter Trust” or “ByPass Trust” or “B Trust”) would have been created. Typically, the purpose of the Family Trust is to provide support for the surviving spouse during his or her lifetime, with the remainder of the trust then going to the children upon the death of the surviving spouse. 
  • There are many other additional strategies, including the use of specialized irrevocable trusts, that could have drastically minimized if not completely eliminated the Estate Tax bill that the Gandolfini family now faces.

It is possible that Mr. Gandolfini was told about the tax bill but was willing to pay the tax as long as his goals were met in the will.  In addition, given that he died younger than he likely expected, he may not have completed estate-planning techniques that would have removed some of these assets from his estate and supported his heirs in other ways.

Here at The Fairfax Estate Planning Law Firm of Evan H. Farr, P.C., we advise that our clients should almost always use a Living Trust as their primary Estate Planning tool, in order to protect assets at death from having to go through probate.  A Will allows you to direct who receives your assets (i.e., who are your beneficiaries) and who manages your estate (i.e., who acts as your executor), but a Will does NOT protect your assets from becoming public knowledge and going through probate.  Only a properly funded Living Trust protects your assets from going through the “nightmare of probate.”

Did you know that 66 percent of adults don’t have an Estate Plan? The catastrophic tax liabilities in this high-profile case serve as a reminder that putting off estate planning can hurt those left behind. Whether you have a $70 million estate or a $70 thousand dollar estate, proper estate planning is critical. And since the future is so unpredictable, it’s never too early to get started with your planning. Call 703-691-1888 to make an appointment for a no-cost consultation at The Fairfax Estate Planning Law Firm of Evan H. Farr, P.C. today.


There’s No Crying in Lawyering


Lawyers are not supposed to cry, no matter how bad things get.  I am terrified of tornadoes, as every sane person should be.  Whenever I imagine myself getting caught outside during a tornado, I am standing near something grounded and sturdy, like an iron water pump.  With my incredibly strong arms, forged through hours of yoga and swelling with adrenaline, I am able to anchor myself to the ground while the vicious winds whip my body about, until the tornado inevitably passes.  Lawyers are sort of like that sturdy water pump.

Lawyers are the sturdy water pump out on the prairie lands of the legal world. Within the courtroom walls, cyclones of emotion are constantly whipping about.  A criminal defendant sheds tears as he realizes that his youth was wasted ingesting drugs that have left him shackled to one GPS anklet and two shrunken testicles.  A woman weeps as her soon-to-be-ex-husband admits that after four years of marriage he began sitting on her crystal ornaments just to feel something.  And ten days into a prosecution for embezzlement, the judge starts sincerely sobbing when the state calls its fourth expert in forensic accounting.

Within all of that tribulation, the lawyer must stand strong as a totem to placidity.  Justice itself must have an anchor as the winds of human suffering lift cattle off their feet and send them careening into phone poles.  We must not waver in our stone-faced quietude.  We must cling to the rule of law and let lives be rearranged as they must.  Whether it be the innocent sorrows of a child or the childlike sorrows of an innocent double-jointed triple-gendered prostitute, we must remain unflappable in our subjective objective.   We are officers of the court.  We are lighthouses of logic on shores of perturbation.   We are sturdy iron water pumps.

With that being said, I have shed many tears in connection with this noble profession.  I cried from sorrow when that fictional jury out of Maycomb Alabama convicted Tom Robinson of rape and I cried from joy when the U.S. Supreme Court abolished DOMA.  I suspect that the spirit of Atticus Finch played a part in both of these moments of weakness.  Damn him for his beautiful perfection.

I have faltered in my own career, as well.  I cried the first time I drafted an opinion for a judge, upholding the decision to terminate a parent’s rights.  I cried after I heard a little old man break down while explaining that he could never tell his family about his trumped up fraud charges because they would lose all of their admiration for him.  I cried when I won my first jury trial and my client’s mother hugged me like I was Bob Barker and she had just won $50,000.00 at Plinko.  And I sat down and cried on dusty steps during my first week of law school, when I couldn’t find the library.

Some may say that it is okay for lawyers to have their own emotions.  They are wrong.  What if George Zimmerman’s attorney were spied upon, in a weak moment, with a look of sadness as he observed demonstrations in remembrance of Trayvon Martin?  People would certainly think that meant he believed his client was wrongfully acquitted.  We do not have the luxury of feeling empathy for our opponents.  That could lead to all sorts of apocalypse-inducing scenarios.  And when the zombies invade during your bar association luncheon, you do not want to be the one with his heart on his sleeve.  A zombie will rip right through that non-iron fabric like it were toilet paper.

Aside from the obvious life-saving implications, this simple message is designed to preserve the dignity and righteousness of the application of the law.   LAWYERS ARE NOT SUPPOSED TO CRY.  If you must find a deeper place to bury your emotions, first try swallowing them, then follow by pouring a large quantity of alcohol on top of them.  Case studies have shown that this method is 100% effective 9% of the time.  If there is one thing that I have learned from imagined disasters, it is to always have a survival plan in place.  Do what you must to keep our system intact.

(image via The Training Factor from Columbia Pictures’ A League of Their Own

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Ask the Expert- Isn’t Medicaid for Poor People?

Q. I was taking my daily exercise walk the other day when I ran into a neighbor who said that his wife with dementia recently qualified for Medicaid and will be entering a nursing home next month. I live in a somewhat affluent neighborhood in Burke where houses go for half a million dollars. This couple worked most of their lives at decent jobs, raised three college-educated children, and have two nice cars. There is no way they can be poor enough to qualify for Medicaid. Can you explain? And if they do qualify for a government program meant for poor people, how is it ethical?

A. Medicaid was designed for the poor during Lyndon Johnson’s War on Poverty and still serves as a program for millions of low-income Americans. But it also benefits many middle to upper class seniors, primarily by covering the catastrophic costs of nursing-homes so families like your neighbors don’t have to deplete the assets it took a lifetime for them to earn.

Nursing homes in Northern Virginia cost $12-$15,000 a month. Many people assume that Medicare will cover long-term care, but at most it covers 100 days of rehabilitation, and does not cover help with activities of daily life, like eating and bathing, that the aged can need for years. With baby boomers and their parents living longer than ever, few families can count on their own money to go the distance. Stagnant incomes, declining savings, and rising debts make the costs of long-term care an increasing threat to the security of current and future middle-class families.

Did you know that only a small percentage of people are covered by private long-term care insurance? As we age, medical care will only get more expensive, and for many of us, the cost of long-term care will outstrip our families already stressed financial resources. This is why, for many seniors over the age of 65, Medicaid is the main way we finance long-term care in this country.

Medicaid is the primary payer for more than a million nursing home residents (Source: Forbes/AARP). And these aren’t the indigent –many of them are the result of middle-income people who have already run through their own money paying for their nursing home costs, and then become eligible for Medicaid. Why wait for that to happen? Life Care Planning and Medicaid Asset Protection is the process of protecting assets from having to be spent down in connection with entry into a nursing home, while also helping ensure that you or your loved one get the best possible care and maintain the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. Life Care Planning and Medicaid Asset Protection can be started any time after a person enters the “long-term care continuum,” meaning that a person is starting to need assistance with Activities of Daily Living (eating, dressing, bathing, toileting, transferring, and walking) or Instrumental Activities of Daily Living (such as cooking,  cleaning, caring for pets, paying bills and managing finances).

Congress accepts the realities of Medicaid Planning through rules that protect spouses of nursing home residents, allow Medicaid Asset Protection via the purchase of qualified Long-Term Care Insurance policies, allow the exemption of certain types of assets, and permit individuals to qualify even after transferring assets to a spouse or to a disabled family members or to a caregiver child.  To plan ahead and accelerate qualification for Medicaid is no different than planning to maximize your income tax deductions to minimize your income taxes.   It is no different than taking advantage of tax-free municipal bonds.  It is no different than planning your estate to avoid estate taxes.

To qualify for Medicaid, applicants must have minimal assets–no more than $2,000 in cash and cash equivalents such as bonds and IRAs. For married couples, the spouse staying at home may have assets worth an additional $115,920, the annually adjusted Social Security cap for 2013. Does this mean that if you need Medicaid assistance, you’ll have to spend nearly all of your assets to qualify? No — there are dozens of Medicaid asset protection strategies that can be employed with the help of a Certified Elder Law Attorney, such as Evan H. Farr.

Money that is protected through proper planning can be used to:
•    provide a nursing home resident with an enhanced level of care and a better quality of life while in a nursing home and receiving Medicaid benefits.
•    to purchase things for the nursing home resident or disabled child that are not covered by Medicaid — such as special medical devices, upgraded wheel chairs, etc.
•    can be left to your children or grandchildren, particularly if there is a disabled child or someone who needs special financial help.
You asked if Medicaid Planning is ethical. If you or a loved one become a client of the Farr Law Firm, you may rest assured that everything that we do is absolutely, unquestionably, 100% legal and ethical.  Attorneys in general have the highest ethical rules of any profession, and as a member of NAELA and a Certified Elder Law Attorney, we and our Elder Law colleagues subscribe to the NAELA Aspirational Standards for the Practice of Elder Law, which articulate ethical standards that raise the level of practice above the floor established by the basic rules of professional conduct. See Read more on our website about Why Medicaid Planning is Ethical.

To discuss strategies specific to your situation, please call 703-691-1888 to make an appointment for a no-cost consultation at The Fairfax Medicaid Protection Law Firm of Evan H. Farr, P.C.


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