Why Can’t I Wear My Halloween Costume to School?

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Last week, Augie’s school announced that, instead of Halloween, it would be celebrating a “Fall Festival,” without costumes, which would not be allowed. The announcement was not surprising, given the trend to dial-back Halloween celebrations in public schools. But it prompted Augie to ask me “Why can’t I wear my Halloween costume to school?”

Here’s the simple answer: because that’s what your school said. And that explanation generally rests—at least for Halloween costumes, student clothing, or student grooming standards in general—on pretty solid legal and constitutional grounds. But the nice thing about having a five-year-old and a teenager in the same house to toss around pseudo-legal questions is that Augie will ask “why can’t I?” while Max will ask “what if I do?” As in, what if—despite what the school says—I wear a costume to school? He then added “and what’s the line between a costume and not a costume anyway?”

As for the reasons for cancelling Halloween, public schools generally give at least one of the following explanations for eliminating Halloween from the school calendar:

  1. Halloween celebrations are religious observances and, if held at a public school, violate the establishment clause of the First Amendment; or
  2. Students with religious objections will not participate in Halloween celebrations or may be offended by them, thus either staying home or feeling left out or ostracized. We want an inclusive environment, so we’ll get rid of the witch costumes and try to be less Halloweeny, like, say, renaming things to the Harvest Frolic or a Cornucopian Carnival; or
  3. It is not part of our educational mission to parade around in costumes and eat candy all day;

The first reason is specious, given how secularized Halloween has become—no one is suggesting we’re celebrating All Saints’ Day or going back to celebrating the pagan tradition of Samhain, with divination rituals, a ring of stones, and the summoning of fairies. No, Halloween has instead become a profitable way of selling leftover Milk Duds, Mr. Goodbars, and all the other candy that doesn’t sell during the rest of the year. Honestly, it is currently a commercial, secular day of the year.

The second reason raises a possible constitutional issue for those who DON’T want to partake in Halloween. So long as the school allows them to opt out (and even this may not be constitutionally required), things are good. But schools, ever wary of lawyers and lawsuits, just figure they’ll do away with the whole problem and call Halloween something else, even if a Fall Saturnalia ironically harkens back to pre-religious, pagan traditions.

Of the three explanations schools use to do away with Halloween, the third one rests most solidly on legal grounds. Basically, schools that take this approach believe that goblin-like merry-making consumes class time that is better spent educating kids. And courts generally won’t argue with that.

Undeterred, and also prompted by teenage fairness and rebelliousness, Max wondered what would happen if his little brother wore a costume to school anyway. I said the school would tell him to take it off and, if he didn’t, we’d get a call and he may get sent home. But, Max asked, doesn’t Augie have the freedom to express his personality at school through whatever he wants to wear?

Sure, but just watch what you wear and what your message is. For instance, you can’t wear a t-shirt with “Drugs Suck” on it (the Drugs Suck case). You cannot unfurl a banner across the street from school with the ironically funny but apparently drug-promoting message BONG HiTS 4 JESUS (the BONG HiTS 4 JESUS case). But you can, at least for now, wear a silicone bracelet with the message “I ♥ boobies (KEEP A BREAST)” (the I ♥ Boobies case). That apparently is OK, though the school district voted just last night to appeal the decision to the US Supreme Court.

To be honest, the whole student free speech issue is a bit of a mess, with varying standards being used, depending on the message the student is making and how that message is being conveyed. Sure, things started off strong for student rights in 1969 with the seminal Tinker decision, which involved three students who wore black armbands to school in 1965 as a silent protest against the Vietnam War. The school quickly banned the armbands (but didn’t ban political buttons) suspended the students, and set the stage for a Supreme Court decision. The students won, with the Court ruling that a public school student may express an opinion on controversial subjects:

if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.

After Tinker, courts considering a student’s free speech rights at school (or sometimes outside of school)  try to figure out the balance between a student’s right to free speech and a school’s need to maintain its disciplinary line against chaos. For the most part courts have been conservative when it comes to student free speech protections, giving public schools wide leeway in maintaining control over what students say, do, or wear. That was the general gist of  Tinker, which also said that the case did not relate to “the length of skirts or the type of clothing, to hair style, or deportment.” And that’s Augie’s problem. His Halloween costume doesn’t really convey a message other than “I like knights,” or “Yay, Halloween!,” or “Dressing up is awesome!” As one court has said “[n]ot every defiant act by a . . . student is constitutionally protected speech.”

Take, for instance, a New Mexico high school student who wore sagging pants to school, in violation of the school’s dress code. After being suspended, he sued the school district. The court, however, was at a loss to figure out what part about wearing sagging pants was speech protected by the First Amendment. While lawyers tried to make a case that “sagging pants are a way for him to identify and express his link with his black identity, the black culture and the styles of black urban youth,” the court was unconvinced. Basically, the court said, there’s no protected speech being made by wearing his sagging pants.

Or, take the case of Aloysius Dreaming Bear,  a young Lakota man who wanted to wear traditional Lakota clothing at his high school graduation, rather than the school’s required cap and gown. While the court recognized that Dreaming Bear’s choice of clothing was expressive conduct entitled to First Amendment protection, the court ruled that the school had a legitimate and greater interest in maintaining “ultimate control over the content and orderly progression of the [graduation] proceedings.”

Ultimately, I have serious doubts that a public school kindergartener has a constitutional right to show up at school dressed as a medieval knight, even if he leaves his foam sword behind as a nod to the school’s weapons policy. While it may be an expression of his personality or may exude solidarity with other Halloween-costumed knights and goblins across the globe, I’m not sure it’s expressive conduct protected by the First Amendment. Besides, a defiant costume wearing kindergartner will likely substantially disrupt his class, especially if the class is trying to learn all about the wonderful festivities that occur in the Fall and he’s exclaiming “how dare you enter my kingdom!.”

Given the descriptive trajectory of legal cases dealing with public school students’ First Amendment rights—from Tinker to BONG HiTS 4 JESUS to Boobies—what’s an activist kindergartener to do if he’s jonesing to buck the system by wearing a medieval knight costume to school? If costumes are prohibited, my advice is this: don’t do it. Just wear a black armband with “I ♥ Goblins (Keep Halloween)” on it as a protest over the school’s elimination of your favorite holiday. Protesting a dress code by wearing a button that protests the dress code actually appears to be allowable free speech in public schools.

Gregory D. Luce is the editor of Bitter Lawyer. Among other things, he writes Legal Crap My Kids Ask Me, answering pseudo-legal questions he actually receives from his kids. God help you if you think the answers constitute legal advice.

Estate Planning Mistakes: Widower’s Home is Now Owned by his Stepchildren

Evan Farr Elder Law

In 1982, William Irish married Janet Warnshuis, a widow who had 3 children from her prior marriage. In 1987, the couple purchased a home together in Corry, Pennsylvania.  Both William and Janet contributed towards the purchase price of the home and they had it titled in both their names, jointly with right of survivorship.

After William retired in 1987, he started a small airplane maintenance company called “Irish Air.” He was concerned about any potential liability resulting from the business’ operation, but was told that the home would not be subject to attachment by his creditors, because it was owned jointly by him and his wife.

Despite the advice he received, in 1990, William deeded title to the Corry property and transferred title to the family car into Janet’s name alone. He did so because he thought it would protect it for liability purposes and provide for Janet in the event he predeceased her. What he apparently didn’t understand was that that because of the way the property was originally titled, it would have passed automatically to Janet, as a surviving joint owner, if William predeceased her, so there was no reason for him to deed the home to her. William would come to regret the day he took it upon himself to transfer the deed to his wife, making her the sole owner.

In 2003, Janet updated her estate planning, and left $20,000 to William and the rest of her estate to her three children, Barry Warnshuis, Candace D. Wells, and Kenneth Jack Warnshuis. Her children were named as executors of her estate.

Janet and William remained married until the time of her death in 2009. After Janet’s death her children, as her executors, sought entry into the Corry home. William refused, claiming that the property was his. The children claimed that the real estate and automobile had passed to Janet’s estate and that ownership should now be transferred to them as part of her estate.

Since the property was titled in Janet’s name, it did in fact become an asset of her estate and subject to the terms of her Will. Since there was nothing in writing that showed that William and Janet intended that the Corry home should pass to William if Janet died first, when William brought the case to court, the Pennsylvania lower court found in favor of the children and against William. It found that he had made a gift of the real estate to Janet. William appealed to the Pennsylvania Superior Court which upheld the lower court’s decision.

The result of this case was certainly not what William intended when he deeded his interest in the home to his wife. The result could have been avoided with a little more attention and advance planning. William should have been more careful how he titled the property and he should have had a written agreement with his wife that the property was not intended to be a gift. He should have met with a Certified Elder Law Attorney who is also an estate planning expert, to discuss the effect of how the property is titled, beneficiary designations, and other strategies to accomplish what William set out to do (provide for his wife and reduce liability from his business) in a better way.

Significant events or changes in your life could alter the way that you originally meant to apportion assets in your estate planning documents. The only way to ensure that your estate plan truly reflects who you are, what you care about, and what you have today is to have your documents reviewed and updated frequently. Learn more at The Fairfax and Fredericksburg Estate Planning Law Firm of Evan H. Farr, P.C. website, or call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for a no-cost consultation. Ask about The Farr Law Firm’s Lifetime Protection Program, which ensures that your documents are properly reviewed and updated as needed, so that they will have maximum effect at law.

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Studies Show Family Caregivers (of Non-Dementia Patients) Find Role Rewarding and Potentially Life Extending

Farr Elder Law Firm FairfaxMichelle’s in-laws helped care for her children for ten years. Two years ago, her father-in-law, Steve, passed away and her mother-in-law, Elizabeth, was left alone and her health was deteriorating. Michelle, who is an RN, decided it was time to give back to her loving mother-in-law, who helped her for all those years. She decided to move Elizabeth into her family’s home and care for her full-time.

Michelle heard from her friends and other family members how taxing it is to be a caregiver. After caring for Elizabeth for six months, Michelle felt these feelings at times, but most of the time she felt appreciated, and like she was giving back. The children also loved having their grandmother around.

Did you know that, like Michelle, times of feeling overwhelmed and frustrated are not the norm for most caregivers? A recent study found that a majority of caregivers (of non-dementia patients) not only feel fulfilled by caregiving for loved ones but also live longer than their counterparts who are not caregivers.

Over 3,500 caregivers were studied by the Center on Aging and Health at Johns Hopkins University. The caregivers were 64 years old on average, and were primarily females. Of those studied, only 17% reported high levels of strain due to caregiving, and the findings over a six year period were that the family caregivers in the study were 18% less likely to die than the non-caregiving participants.

Why caregivers were more likely to remain healthy was not a subject of this study, but experts in aging concur with the study’s findings that caregiving for family members is primarily a rewarding experience. As is the case with Michelle in our example, giving back care to parents and grandparents for all that they gave to family is a typically a source of happiness.

Are you a caregiver? As you know, it is not always possible to avoid stress, so we need to learn strategies on how best to cope. Caregivers should:

  • Maintain a healthy positive attitude; believe that you can do whatever you set your mind to accomplish, especially when you believe it to be the right thing to do.
  • Find ways to take a little time for yourself and relax. A ten minute nap, a soothing bath or hot shower, reading a chapter a day in your favorite book or stopping for a refreshing beverage in your busy day.
  • Eat a well-balanced, nutritious diet to keep yourself fueled for the day’s activities.
  • Don’t overlook your own health; get your annual check-ups and preventive health screenings as well as your immunizations.
  • Get enough sleep each night and daily rest breaks.
  • Reach out for help and accept help when offered. Realize you can’t (and you don’t have to) do it all! Set up a network of family, friends and aging services that can help you when you are in need. Don’t be afraid to ask!

For additional tips on caregiving and alleviating stress, read some of our recent blog posts including:

More Men are Becoming Caregivers for Loved Ones with Dementia, Only-Children: Caregiving without Siblings, Feeling Torn Between Caring for Your Children and Your Parents, and more (use the search function on this blog or click on the topic “caregiving” on the lower right.)

It is important to note that this study specifically did not address being a caregiver of a dementia patient, which is a much more stressful task.  Depression and other physical ailments frequently arise from caregiver burnout, and these symptoms are much more likely if your care recipient suffers from dementia.

What happens when you do burnout, or when your loved one needs more help than you can provide? Nursing homes in Northern Virginia cost $9,000 – $12,000 per month (a few thousand less in the Fredericksburg, Virginia area), which can be catastrophic even for wealthy families. By being proactive and helping your loves ones plan for long term care in advance, you can help make sure your loved ones always receive the care they need without worry or financial struggle.  You’ll further avoid many costly legal headaches that often result when people are not prepared for incapacity or ongoing care needs.  It’s never too early to get started. Learn more at The Fairfax and Fredericksburg Medicaid Asset Protection Law Firm of Evan H. Farr, P.C. website, or call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for a no-cost consultation.

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Now this is SCARY- Filial Responsibility Part 2

Ruth and Earl Linderkamp, parents of Dawn Herrmann and Elden, Louis, Carl, Gene, and Dennis Linderkamp, resided in Four Seasons Healthcare, a nursing home in Forman, ND from 2006 until they died in 2009 and 2010, respectively. In August 2006, two months before the parents entered the nursing home, they signed a contract selling the property to their son, Elden (who had been leasing the land from them and farming on it for 20 years), and his wife Rita, for $50,000. The final deed was signed in November 2006, a month after they entered the nursing home.

After Ruth and Earl passed away, Four Seasons Healthcare sued Elden and Rita for payment of unpaid nursing home care provided to his parents. The nursing home claimed that the transfer of land made by Ruth and Earl was a “fraudulent conveyance,” or an attempt to avoid debt, the amount paid was much less than what the property was worth, and that Ruth lacked capacity to execute the deeds. In addition, the nursing home sought to hold Elden liable for his parents’ cost of care under North Dakota’s filial support law (N.D.C.C. § 14-09-10).

When he found out about the lawsuit, Elden brought a third party claim against his siblings to help contribute to the cost of the nursing home care provided to their parents. The personal representative of the parents’ estates thereafter sued Elden and Rita, claiming that the parents lacked capacity to execute the contract to transfer the land to them. The actions were consolidated, and the district court’s judgment was that Elden was, in fact, liable for his parents’ unpaid nursing home care.

As part of the ruling, the North Dakota lower court voided the deed to the land as a fraudulent conveyance. The Supreme Court affirmed this aspect of the lower court’s decision, authorizing the parents’ personal representative to administer the farmland in the probate of their estates. The judgment also required that Elden pay Four Seasons Healthcare $104,276.62 for his parents’ care and refused to consider whether Elden’s siblings were required to share in this liability.

Elden and Rita appealed the ruling, arguing that the district court erred in deciding that Ruth was not competent enough to execute the deeds and that the land transfer was a fraudulent conveyance. The couple also argued that the court was incorrect in imposing personal liability against Elden for his parents’ nursing home care, and in deciding that his claims against his siblings were moot.

On appeal, the Supreme Court agreed that Elden was responsible for the cost of his parent’s care. It said: “The language of N.D.C.C. § 14-09-10 imposes a duty on children of parents who are unable to support themselves to maintain their parents to the extent of the ability of each child, which may be enforced by any person furnishing necessaries to the parents.”

But the Supreme Court held that the lower court erred in holding Elden solely liable without deciding the extent of the other children’s responsibility under the filial support statute. It returned the case to the lower court for consideration of this issue and apportionment of the debt. The case has been remanded for further proceedings.

Similar to Ruth and Earl Linderkamp, as your parents age, they may spend months or years in a nursing facility. What happens if one of them is in need of long-term care and is unable to pay for it? Currently 30 states, including Virginia, have “filial responsibility” laws that can be used by nursing homes and other long-term care facilities to seek reimbursement for unpaid bills from the children of nursing home residents if the nursing home residents cannot pay the bills themselves. According to these laws, adult children are legally responsible (at least on paper) to pay for necessities like food, clothing, shelter and medical attention for indigent parents.

Even with these laws in place, the practice of nursing homes turning to them to collect unpaid debts is not too widespread, but as you can see from the Linderkamp case, it can happen. For another example, read part one of this series, featuring the case of Health Care Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012).

How can you avoid parental support pitfalls? Medicare may cover short-term rehabilitation in a nursing home if certain conditions are met, but only for a maximum of 100-days.  At that point, residents without long-term care insurance must pay for their own care unless they have done proper Medicaid asset protection planning, which is an absolute necessity if you want to avoid the possible application of Virginia’s filial responsibility law.  Virginia’s law (Virginia Code Section 20-88) states as follows:

“It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.”

However, there is additional critical language in Virginia’s statute – it says that this law 

“shall not apply if . . . a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program.”  

In other words, Virginia’s filial responsibility law does not apply if the parent is receiving Medicaid!  This exception is crucial to understand and means that it is essential that adult children help their parents plan to receive Medicaid if these adult children don’t want to wind up being responsible for their parent’s nursing home care as happened in the Linderkamp and Pittas cases.

The result in the Four Seasons case is another stark example of the financial risks children bear in states like Virginia and North Dakota for the cost of care provided to their aging parents. The Linderkamp experience serves as a warning for middle-aged children with parents who are racking up nursing home bills or who may in the future need nursing home care. The only way you can make sure you do not fall victim to a filial support action is by planning ahead. Children have to be proactive regarding how their parents are financing their long-term care. Some families of modest means may assume Medicaid will cover a parent’s care once the parent has depleted savings and other resources. But it’s a huge mistake to assume that Medicaid will be easy to obtain.

Medicaid laws are the most complex laws in existence, with 8 separate bodies of law (4 at the Federal level and 4 at the state level) dealing with Medicaid and Medicaid eligibility.  To do proper Medicaid asset protection planning, families need the help of an experienced elder law attorney, preferably a Certified Elder Law Attorney such as Evan H. Farr.  The best time to do Medicaid Asset Protection planning is now.  Whether your parents are years away from needing nursing home care, are already in a nursing facility, or somewhere in between, the time to plan is now, not when your parents are about to run out of money.  Call The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. today at 703-691-1888 to make an appointment for a no-cost consultation.

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Many Americans Don’t Ever Expect to Retire

elder law Fredericksburg vaWhen it comes to retirement, many Americans expect that they will never be able to afford to retire fully. In fact, a new Wells Fargo study cited in USA today found that 37% of people expect to work until they are too sick or die, despite the world economy returning to health.

The annual Wells Fargo Middle Class Retirement study surveyed 1,000 middle-class Americans between the ages of 25 and 75. Findings revealed that the top concern among respondents was being able to pay day-to-day bills now, while saving money for retirement. This is in part because, despite the recovering economy, many people are still affected by the changes wrought by the Great Recession that are still lingering, including lower-than-expected earnings and investment returns, depleted savings, and loss of jobs and income. Therefore, if retirement is in their future, people in their 40s and younger need to take some time to start planning or to revisit their plan, and Baby Boomers need to think with more urgency.

To help you plan, below are some recommendations:

  • Set a goal and start planning: Figure how much you will need for retirement. You can get a ballpark estimate at choosetosave.org, run by the non-profit Employee Benefit Research Institute. If you are not on track, figure out what you have to do to get there.
  • Figure out what retirement means to you: Ask yourself questions like, “What will I do? Where will I live? Will I travel early? Do I want a second home?” It’s critical to know these details when it comes to discipline needed to act out the plan to help achieve it.
  • Manage your debt: Anybody who is seriously thinking about preparing for retirement must reduce their debt. This includes credit cards, mortgage debt, and even student loan debt, because so many older Americans have gone back to school and financed their education or co-signed for their adult children.
  • Hire a financial advisor. Make sure you have the right mix of stocks, bonds and other savings. If you live in Northern Virginia, be sure to check out the Trusted Referrals listed on The Law Firm of Evan H. Farr, P.C. website.
  • Be prepared for predictable but unfortunate life events. Did you know that in any given year, you are more likely to become incapacitated than you are to die? Many people will get life insurance, but fail to plan for long-term care. Meet with a Certified Elder Law Attorney, such as Evan H. Farr, to protect your family’s hard earned money and assets from the catastrophic costs of long-term care. Read our recent article, Why You Shouldn’t Put Off Long-Term Care Planning, for more details.

As mentioned in the article above, long-term care planning should be an important part of your retirement planning. If you have a loved one who is nearing the need for long-term care or already receiving long-term care or if you have not done Long-Term Care Planning, Estate Planning or Incapacity Planning (or had your Planning documents reviewed in the past several years), please call The Fairfax and Fredericksburg Long-Term Care Planning Law Firm of Evan H. Farr, P.C. at 703-691-1888 to make an appointment for a no-cost consultation.

Medicaid Asset Protection


Ask the Expert: Staying Eligible for Medicaid after the Death of a Spouse

Evan H. Farr Medicaid Asset Protection FredericksburgQ. My mother, Rose, is a Medicaid recipient who has been in a nursing home for the past eight months due to Alzheimer’s. My father, William, has been living in the home where he and my mother lived for over 25 years in Fredericksburg, Virginia. They bought the house together when they moved from Stafford, VA down to Fredericksburg.  The mortgage is paid off and the house is worth about $200,000.  My dad also owns a car and has some other personal assets that were allowed under Medicaid, plus about $50,000 in CDs that Medicaid let him keep.  My dad was recently diagnosed with cancer, and because of his age, he doesn’t want to get any treatment for it. It was a difficult discussion, but my brother and I recently suggested to dad that maybe he should update his estate planning documents in case he dies before mom.  Does this make sense?  Are there planning options for my father that will not affect my mother’s eligibility for Medicaid? Would it be wise for my father to remove mom as a beneficiary altogether?

A.  It would definitely be wise for your father to update his entire estate plan. He probably has your mother named as his primary agent for all of his documents, and as his primary beneficiary of his estate if he dies first.  They probably also still own their house jointly. A huge issue arises if your father predeceases your mother. Because your mother is receiving benefits under Medicaid, she cannot own assets totaling more than $2,000. These are a few scenarios to describe what can happen if you father includes your mother as a beneficiary:

  • If your father were to predecease your mother and leave the house and his $50,000 in financial assets to your mom, then she will be knocked off of Medicaid until the house is sold and she has spent down (or legally protected) your father’s entire $250,000 estate until her countable assets are back below $2,000.  And she will have to reapply for Medicaid once her countable assets are again below $2,000. 
  • If your father disinherits your mother, then she will also be disqualified from Medicaid for a period of time.  This is because, as the surviving spouse, she is entitled to claim a one-third portion of her deceased husband’s estate (one third of $250,000 would be about $83,333). As a result, if your mother (or someone on her behalf) fails to claim that one-third portion of her deceased husband’s estate, Medicaid will assess a penalty — which is a period of ineligibility for Medicaid — against your mother because Medicaid would treat her failure to make the claim the same as a gift.  In your mother’s situation, by failing to claim one-third of your father’s $250,000, she would incur a penalty period of around 14 months!
  • If your father leaves your mother one-third of his estate, she will be knocked off Medicaid until she has spent down (or legally protected) that one-third of his estate.

To prevent your father’s death from affecting your mother’s Medicaid eligibility, it is important you’re your father update his estate plan. There are various steps that your father can take to protect these assets, including setting up a trust. If your father creates a trust, it could provide that if your father were to predecease your mother, the assets will bypass your mother and instead pass directly to you and your brother, either outright or in trust. In this case, the assets contained in the trust will not replace the government benefits, and will not affect Medicaid Eligibility. To find out more about strategies specific to your situation, be sure to set up an appointment with a Certified Elder Law Attorney, such as Evan H. Farr.

Evan H. Farr, CELA, is one of the leading Elder Law Attorneys in Virginia and foremost legal authorities in the Country in the field of Medicaid Asset Protection and related Trusts. The Fairfax and Fredericksburg Medicaid Asset Protection Law Firm of Evan H. Farr, P.C. is dedicated to helping protect seniors and their families by preserving dignity, quality of life, and financial security. Please call us or ask your father to call us at 703-691-1888 to make an appointment for a no-cost consultation to discuss your father’s situation and explore his options.

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Why You Shouldn’t Put Off Long-Term Care Planning

elder law Fredericksburg virginiaMost people will need some kind of help with the activities of daily living, such as dressing, bathing, or moving around, in their lifetime. The need for such help can result from a natural decline of hearing, eyesight, strength, balance, and mobility that comes with aging, or can stem from a chronic illness. It is never too early, or too late, to start planning for long-term care, yet many people are putting it off.

A recent AP poll found that two-thirds of people age 40 and over say they’ve done little to no planning for the difficult and often pricey reality of aging. The reasons cited in the research included that people are “in denial” because we are living longer, are generally healthier and treatment and medicine have assisted in increasing life spans of an aging population.

In spite of the poll findings, more than half of people age 40 and over have already been caregivers for an impaired relative or friend. Although they have had a hands-on experience about the kind of assistance they, too, may need later on, only a quarter of those polled predict it’s even likely that they’ll personally need help getting around or caring for themselves during their senior years. With a large percentage of people in denial about planning for long-term care, below are reasons for NOT putting off Long-Term Care Planning:

  • Long-term care is more expensive than most people think, and you will likely be responsible for paying out of your own pocket for the care you need.  The only public program that helps pay for long-term care services is Medicaid. Another special program that helps pay for long-term care is Veterans Aid and Attendance.   However, each program has specific rules about whether or not you qualify for benefits, what services are covered and how much you have to pay in out-of-pocket costs. It is important to understand that Medicare, the public health insurance system for seniors over 65 and disabled adults, does not pay one penny for long-term care. Medicare only pays for medical care delivered by doctors and hospitals, and in certain cases short-term rehabilitation which might take place in a nursing home.  In addition, when it comes to Medicaid, it gets very complicated to complete and file the application, and it takes a Certified Elder Law Attorney, such as Evan H. Farr, to help you protect assets first and then file for Medicaid.
  • It is important to consider where you will live as you age and whether your place of residence can accommodate your needs should you become unable to fully care for yourself.  Most people prefer to stay in their home or apartment for as long as possible. But, whether your home is “aging friendly” depends on its condition and whether it can be modified for someone with limited mobility. Another option is to move to a community or facility that is more supportive of long-term care needs. Read our recent blog post entitled “Remodel or Relocate” for more details about this topic.
  • Unpaid family members are the most common source of long-term care help. But, they may not be able to provide all the care you need, or be there every hour of the day. As part of your long-term care strategy, look into caregiving services in your area, including in-home care providers, elder daycare centers, and PACE programs. How can you choose the right service provider for your needs? If you live in Northern Virginia, be sure to check out the Trusted Referrals listed on The Law Firm of Evan H. Farr, P.C. website.


Nursing homes in Northern Virginia cost $10-12,000 a month.To protect your family’s hard earned money and assets from these catastrophic costs, the best time to create your long-term care strategy is before you actually need long-term care. If you’re over 45, we recommend that you begin your planning now. Even if you are currently receiving services for yourself or a loved one, it’s still not too late to plan.

If you have a loved one who is nearing the need for long-term care or already receiving long-term care or if you have not done Long-Term Care Planning, Estate Planning or Incapacity Planning (or had your Planning documents reviewed in the past several years), please call The Fairfax and Fredericksburg Long-Term Care Planning Law Firm of Evan H. Farr, P.C. at 703-691-1888 to make an appointment for a no-cost consultation.

*Virginia has no procedure for approving certifying organizations.

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Learn New Skills to Keep Your Memory Sharp

estate planning fairfax vaMary, who is 65, listens to classical music every day and does Sudoku and crossword puzzles. She is familiar with these things and hopes they will help to keep her mind sharp as she gets older. While these activities are certainly enjoyable for Mary, a new study found that continuous and prolonged mental challenge rather than doing activities within your comfort zone, is needed to keep the mind sharp.

A recent study at Texas University in Dallas involved 221 people ages 60 to 90, who were split into groups to learn new skills, such as digital photography, quilting or both for 15 hours a week over three months. Others listened to classical music and completed crossword puzzles or were put into groups that did social activities. The three learning groups were pushed very hard to keep learning more and mastering more tasks and skills. At the end of the three months, the researchers compared how different social and learning environments affected the mind. The findings showed that the participants built relationships and learned new skills, and only the groups that were confronted with continuous and prolonged mental challenge improved.

According to Dr. Denise Park, who led the study, “When you’re inside your comfort zone you may be outside of the enhancement zone. We need, as a society, to learn how to maintain a healthy mind just like we know how to maintain vascular health with diet and exercise. We know so little right now.”

The study, published in Psychological Science, suggests that, in general, older adults need to choose new and challenging activities to help their long-term memories as they age. The researchers plan to follow up with the participants after one year and five years to see if the effects remain.

At the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. (www.VirginiaElderLaw.com), we were intrigued by this new research, and hope it will encourage you to challenge yourself to keep your mind sharp. Our firm is dedicated to helping protect seniors and individuals with special needs by preserving dignity, quality of life, and financial security. If you have not done Long-Term Care Planning, Estate Planning or Incapacity Planning (or had your Planning documents reviewed in the past several years), or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for a no-cost consultation.

P.S. For the rest of October at our Fredericksburg Elder Law location, we are offering a Grand Opening special of 25% off all elder law and estate planning for new clients of our Fredericksburg Elder Law office (not to be combined with any other offer). Call us in the Fredericksburg area at 540-479-1435 to make an appointment for a complimentary consultation or click here to attend one of our upcoming seminars.

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elder law fairfax va

elder law fairfax virginia

Tip-of-the-tongue Moments Don’t Necessarily Signify Dementia

estate planning attorney FredericksburgJane is in her 60’s and has been having many “stuck on the tip of your tongue” moments with names and faces lately. She used to be really good with recalling these things and sometimes worries she is beginning to experience early signs of dementia.

Luckily for Jane and many others who have had the same experiences, researchers found that tip-of-the-tongue moments become more common as people age, and are not related to worsening memory overall.

In a recent study at the University of Virginia, consisting of 718 adults between the ages of 18 and 99, each participant was put through a number of tests to gauge memory, including identifying famous people in photographs and words from their descriptions. Participants were then able to choose from multiple answers if they couldn’t name the person in the picture or the word described by the definition or description, but said they knew the answer. If they were right, it was marked as a tip-of-the-tongue experience.

When compiling results, the researchers adjusted the numbers to account for the fact that older people are more knowledgeable, and therefore have more opportunities to have tip-of-the-tongue experiences. Then, they took into account how people scored on a test of episodic memory, which is memory of events in a person’s own life. It’s also the type of memory that’s often tested to check for dementia. The findings were that declining episodic memory did not seem to explain the increase in tip-of-the-tongue experiences as people aged.

According to Timothy Salthouse, the study’s lead author and Brown-Forman Professor of Psychology at the University of Virginia in Charlottesville, “Even though the tip-of-the-tongue experiences are more common as you get older and they’re very frustrating … they don’t seem to be a sign that you’re having memory problems associated with impending dementia.” He cautioned, however, that the study can’t say these lapses aren’t concerning, because the researchers only looked at one type of memory. And their participants were still relatively vibrant.

Based on these findings, he said, tip-of-the-tongue moments “may not be a sign that you’re on the cusp of very dramatic memory decline.” However, memory loss that disrupts daily life may be a symptom of Alzheimer’s or another dementia. Alzheimer’s is a brain disease that causes a slow decline in memory, thinking and reasoning skills. There are 10 warning signs and symptoms. Every individual may experience one or more of these signs in different degrees. If you notice any of them, please see a doctor.

Do you have a loved one who is suffering from dementia? Persons with dementia and their families face special legal and financial needs. At The Fairfax and Fredericksburg Alzheimer’s Planning Law Firm of Evan H. Farr, P.C., we are dedicated to easing the financial and emotional burden on those suffering from dementia and their loved ones.  If you have a loved one who is suffering from dementia, we can help you prepare for your future financial and long-term care needs.  We help protect the family’s hard-earned assets while maintaining your loved one’s comfort, dignity, and quality of life by ensuring eligibility for critical government benefits. Call 703-691-1888 to make an appointment for a no-cost consultation.

Fairfax Elder Law Attorneys

elder law fairfax va

elder law fairfax virginia

Government Seeks To Stay Health Act Cases Due To Government Shutdown

Ask Liza: Annual Gifts and Lifetime Gifts

Dear Liza, I would like to give my son $200k to upgrade homes. Can me and my wife each give $13,000 to my son, daughter in law, and two grand children? That would be $102,000, and then apply the remaining…

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