Critter Corner: Power of Attorney vs. Guardianship

Dear Angel,

My brother is a spend-thrift and a recovering alcoholic. I want to do something before he blows through all of his savings. I was doing some research, and noticed my options included “Power of Attorney” or “Guardianship.” What is the difference between the two?

Thanks for your help!

Wanda Protectum
Dear Wanda,

Thanks for your question. Power of Attorney and Guardianship perform similar functions.  However, they are vastly different in terms of how someone is appointed, who does the appointing, and how much control the appointed agent or guardian has.

Guardianship is a legal relationship in which the court authorizes one person with the power to make personal and/or financial decisions for another person. The person authorized with decision-making power is known as the guardian and the person for whom the decisions are being made is known as the ward. Guardianship over the person typically goes along with Conservatorship over property, which in some states is called Guardianship over Property.

Guardianship and Conservatorship is assigned when a person has been determined to lack the capacity to make rational and intelligent decisions on their own in regard to their medical decisions and/or finances. Usually it is a family member who applies for Guardianship and Conservatorship, but it can also be a friend, or in some cases the County or City in which the ward resided. In some cases, a third party may be appointed as Guardian and/or Conservator, particularly in the case of finances, if no one close to the ward is deemed appropriate. Conservators are subject the nightmare of “living probate,” meaning that, among other things, they must file annual accountings every year with the Probate Court or Commissioner of Accounts.

A Power of Attorney is a legal document created by one person, known as the principal, to give another person, known as the agent, legal power to act on behalf of the principal. The document can grant either broad and unlimited powers or limited powers to act in specific circumstances or over specific types of decisions. Typically a Power of Attorney is effective immediately, but is intended to be used only when necessary at some future date.

In most cases, Power of Attorney is greatly preferred to Guardianship because:

• Unlike a Power of Attorney, a Guardianship cannot be created voluntarily; it is granted by a judge;
• The principal retains more control over who makes the decisions and what decisions they can make;
• Power of Attorney has significantly lower costs compared to applying for guardianship (court costs are usually paid for out of the ward’s estate);
• No court is involved;
• No annual accountings are required to be filed;
• More privacy (probate court proceedings are public record);
• The principal may revoke the Power of Attorney at any time so long as the principal has the mental capacity to do so, whereas a Guardianship and Conservatorship can only be revoked by the court.

To discuss your specific situation, please make an appointment with Mr. Farr for a no-cost initial consultation.

Wishing you the best,


When is a Person Too Incapacitated to Sign Legal Documents?

Q. My father, Roy, has severe arthritis and is in the early stages of Alzheimer’s. He is widowed and currently lives in a stand-alone  cottage house that my husband and I built for him in our backyard. Sometimes he seems completely “with it,” and other times, he loses his bearings, forgets names and faces, gets agitated for no apparent reason, and seems to be in his own world. Since my family is aware of how important it is to plan ahead, my sister and I decided to sit down with my father to broach the subject of planning for incapacity, estate planning, and long-term care.

When we brought up planning, my father seemed reluctant to discuss setting up a Power of Attorney, which would empower one of us to make legal decisions for him. We assume this is because he thinks this act would be an admission that he may actually need help, and he has always been very independent and proud of being in control of his own affairs. Or, maybe he just doesn’t understand what we are asking, and that is why he is avoiding the topic.

We are not sure what to do, as we know he should plan now, while we think he still can. Or, maybe we are wrong and he is already too incapacitated to legally to sign a Will, Trust, or Power of Attorney. We are also concerned that he can’t even physically sign his name, because of his severe arthritis. How do you determine whether someone has the capacity and ability to sign legal documents, and what steps do you suggest we take?

A. All legal documents — including Wills, Trusts, and Powers of Attorney — require that the individual signing the document have the mental capacity and the ability to comprehend the significance of the document that he or she is signing.

In the case of an Alzheimer’s patient, such as your father, it is essential that legal documents be signed before the patient’s condition progresses to the point at which he or she is no longer capable of signing a legal document. And, if he had previously executed a legal document (which you should certainly ask him about), it is very important to consider whether or not the document should be amended or revoked while he retains the capacity to do so.

So, how is Incapacity Determined?

Many people are surprised to find out that a person with Alzheimer’s may still be legally competent to sign documents. For instance, when it comes to a Will, under the laws of most states, a person is legally competent to sign if at the time of the signing he or she meets the following tests:

•Knows the natural objects of his bounty (i.e., is aware of his spouse and children, if any)

•Comprehends the kind and character of his property (i.e., knows approximately his net worth and what kind of assets he owns)

•Understands the nature and effect of his act (i.e., realizes that it is indeed a will he is signing, and what that means)

•Is able to make a disposition of his property according to a plan formed in his mind

An experienced attorney, such as myself, should meet with your father to try to discern the above. A physician’s recommendation can also assist in providing guidance about your father’s mental capacity.

Power of Attorney

A slightly different test is involved for signing a Power of Attorney. Here, the individual must be capable of understanding and appreciating the extent and effect of the document, just as if he or she were signing a contract.  In some cases, the parent may be competent to sign a Power of Attorney, but not competent to sign a Will.


A Trust is sometimes deemed to be more like a contract than a Will, so that the necessary mental capacity needed to sign a trust may be less than that needed to sign a Will. Recognizing that in today’s world living trusts are most often utilized as “will substitutes,” some recent state statutes have made the test for a trust the same as that set forth above for a Will.

What if the Person Can’t Physically Sign His Name?

You mentioned that your father has severe arthritis and may not be physically able to sign his name. The mental capacity to sign the document should not be confused with the physical ability to sign one’s name. The law will permit a person to sign an “X” (or any other “mark”), that, so long as properly witnessed, will suffice just the same as a signature. In addition, if even a mark is not possible for the individual to make, then the individual can direct someone else to sign on his or her behalf.

What if he Doesn’t Have the Capacity, or is Unwilling to Sign?

If a Power of Attorney can no longer be signed, you may be able to become a Conservator. Conservators can act like an Agent under a Power of Attorney, with the capability to make financial and legal decisions. But becoming a conservator takes time and involves a costly court procedure.

So, the best advice is not to wait until it may be too late and court action is needed, but to have those conversations with family members while they are still competent and able to comprehend exactly what they’re signing and why.

Talking to Your Father

If your father is possibly still competent, but reluctant to talk about or sign a Power of Attorney, here are some tips for the conversation:

• Think of the best time and place to begin the conversation. Your father needs to feel relaxed and with time to talk.

• Listen carefully, and prompt with gentle questions. By doing so, you open up a dialogue, rather than dictating what you want to happen.

• Make sure you listen actively and that your questions are open-ended, so that they don’t invite “yes” or “no” responses. So, say things like “How would you feel about…?” for example to gauge how he is feeling about things.

• Point out the benefits of signing a Power of Attorney – most importantly, the peace of mind of knowing that critical matters like welfare and finances will be in the hands of someone he trusts, when it becomes necessary.

 Point out the tremendous costs savings – of signing a Power of Attorney now versus waiting until he can’t sign and having to pay five to twenty times more for a conservatorship proceeding.

• Bring him to an experienced Elder Law Attorney – just to begin the discussion of what type of planning is needed.  Often hearing what is needed from an expert will hold a lot more weight than hearing it from a family member.  We’ve had dozens of clients whose children insisted that their parent would never sign a Power of Attorney, yet once the parent met with us and we explain why it’s necessary, the parent did indeed sign.

The Time to Plan is NOW!

As you know, one of the most important decisions you can make it to plan for your future and for your family, especially while your family still have their wits about them. Please contact us as soon as possible to make an appointment for a no-cost initial consultation:

Fairfax Power of Attorney: 703-691-1888
Fredericksburg Power of Attorney: 540-479-1435
Rockville Power of Attorney: 301-519-8041
DC Power of Attorney: 202-587-2797

A Memory Forest Full of Hope and New Life


When Janis’ father, Barry, had cancer, he tried chemo, radiation, and ayahuasca, a plant native to Peru that is used in traditional healing ceremonies. He is an arborist by trade, and a hippie by nature. Prior to his cancer, he was strong and active, and well into middle age, you could find him climbing up a tree and spending his time in a tree house he built for Janis when she was a child.

Barry beat the odds, and overcame his cancer, but like most people in similar situations, it made him think long and hard about his mortality. To Barry, his brush with death was a wake-up call that it was time to plan. As an environmentally conscious tree-lover, Barry knew he didn’t want to spend eternity in a coffin made of wood from a dead tree. He weighed his options, to find that one day, there was the possibility that he could live on as and continue to grow in nature as one of his favorite things: a tree.

Conventional Burial and the Environment

Around half of Americans are buried after they die, and many environmentally conscious people, such as Barry in our example, are looking for greener options. Why? Burial in the U.S. takes a lot of resources. Each year, more than 30 million board feet of wood, 1.6 million tons of concrete, 800,000 gallons of embalming fluid, and 90,000 tons of steel are used for underground burials in the United States alone. Cremation, while less resource intensive, uses about 28 gallons of fuel and releases about 540 pounds of carbon dioxide into the atmosphere.

When it comes to the wood for a coffin, it takes 10 to 40 years for a tree to grow. It is then cut down and made into a coffin that only serves a purpose for 2 or 3 days. It was this line of thinking that sparked the perfect solution: a way to save one tree and plant another.

The Capsula Mundi Project

Founded in Italy, the Capsula Mundi project involves organic burial pods that turn loved ones into trees. Fueled by their love of trees, founders Anna Citelli and Raoul Bretzel created an organic, biodegradable burial pod that literally turns a person’s remains into nutrients for a beautiful tree growing directly up above.

How do they work? The body is first encapsulated into a fetal position in order to fit inside of the burial pod, which looks like an earthy piece of art, but really is a biodegradable “casket.” Once the burial pod is buried deep underground, a tree seed or a young tree is placed directly above, and from one source of life sparks another.

The idea behind the project was that instead of visiting a depressing cemetery, visitors can instead enter a beautiful memory forest full of hope and the promise of new life. Loved ones would care for the tree, seeking comfort beneath its shade, which is far more than you can expect from a tombstone.

The company will offer an assortment of different trees clients can choose from, enabling clients to pick their favorite tree while they are still alive. The idea is that the tree is chosen when the person is alive, and relatives and friends look after it when death occurs.

Unfortunately, these burial pods are only a concept for now, as it is against Italian Law to bury someone in this manner. The eco-friendly forces behind Capsula Mundi are currently working to change legislation and spread the word to others, turning their amazing burial ritual into a reality.

Poetree: Another Green Option for Those Who Prefer Cremation

French designer Margaux Ruyant created Poetree, a funeral urn that allows loved ones to plant a tree with a loved one’s ashes, while also providing a simple but elegant monument.

Poetree is made out of a ceramic ring with the deceased’s details, plus a cork container and stopper. Relatives can place the deceased’s ashes in the urn and take it home, along with a boxwood tree sapling in a biodegradable pot. When they are ready, the cork stopper is removed, soil can be poured inside the urn, and the small tree may be planted in the ashes.

After giving the boxwood tree some time to grow, the urn can then be planted outside, where the cork container can biodegrade, leaving only the ceramic ring as a marker and a living, growing tree to commemorate those who have passed on.

Green Burial in the United States

For environmentally-conscious people, even if you cannot or do not want to be planted as a tree, you can still be buried in a green way. In fact, in an AARP online poll, 45% of participants indicated they would choose green burial over traditional burial or cremation, when given the choice. And, in the U.S., there are currently 28 green or hybrid cemeteries in 19 states.

Green Burial uses liquid nitrogen to bring the body to a eco-friendly state. The body is frozen and is then slightly vibrated which turns it into a powder and then the powder is dried. The powder can then be placed in a corn or potato starch coffin and buried. This option reduces the impact on water, air and soil compared to the traditional burial or cremation.

The same state laws that govern traditional cemeteries apply to green cemeteries, but as with any death-related purchases, you should select your provider with care. Learn more about Green Burials at

Make Your Burial Desires Known While You Still Can

What if you want your body or your ashes to be planted with seeds to grow a new tree, or what if you want a green burial? How would your loved ones know if you haven’t indicated your wishes in your Advance Medical Directive?

Our proprietary 4-Needs Advance Medical Directive(TM) enables you to set forth your preferences with regard to organ donation, funeral arrangements, and disposition of remains. The document also accomplishes several essential things. In your 4-Needs Advance Medical Directive(TM), you can appoint an agent and give that person the power to consent to medical and health care decisions on your behalf. This person can decide whether to withhold or withdraw a specific medical treatment or course of treatment when you are incapable of making or communicating an informed decision yourself. Our 4-Needs Advance Medical Directive(TM) also contains a proprietary Long-Term Care Directive(TM) that allows you to address numerous issues that arise if and when long-term care is needed.  You can also indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life in the event of a terminal illness or injury.

If you have not done Incapacity Planning (including our 4-Needs Advance Medical Directive(TM) and Financial Power of Attorney), Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact usto schedule your appointment for our no-cost initial consultation:

Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797

Critter Corner: Red Flags that You Need a Break from Caregiving

Dear Commander Bun Bun,

I am a caregiver for my mother, Ellen, who had a stroke last year. She is very demanding at times, and I may be approaching burnout. I rarely take time for myself, and my emotions range between feeling fulfilled and thankful that I can help my mother, and feeling stressed out about my situation. The dentist told me that he can tell that I have been grinding my teeth at night, and my primary care physician is concerned about my blood pressure. Is this normal for caregivers to experience? Do you know about the red flags caregivers should be aware of, that signify that they need a break from caregiving?


Anita Brayk


Dear Anita,

As you know, caring for a loved one can be rewarding, but it can also be stressful, at times. For many, it’s easy to get burned out and feel stressed, and not even realize it.

Besides the health issues that you described, here are some red flags that indicate you need a break from caregiving.

1. Getting easily irritated: You may find yourself yelling or snapping at people, including the person you are caring for. You may want to hit or throw things. You may feel like it is becoming increasingly difficult to handle obstacles or challenges when they arise.

2. Inability to control your emotional response: You cry unexpectedly or more often than usual, and may experience feelings of desperation. You may have dramatic mood swings, where you feel okay one minute, and the next, you’re in the depths of despair.

3. Trouble sleeping: Chronic sleep deficiency is serious, and increases your risk for many other health problems, including memory loss, heart disease, high blood pressure, stroke, and diabetes. In addition, if you cannot sleep at night or get quality sleep, you will likely feel extremely tired throughout the day, and unable to help your mother when she needs you.

4. Getting sick too often: Many people get a minor virus once or twice a year, but if you are catching every new bug that comes around, something is off in your immune system, a sure sign you are under too much stress.

5. Increase in physical ailments: You may experience new health issues, such as chronic headaches, muscle or joint aches, stomach aches or other digestive symptoms; or something you had before becoming a caregiver may become worse. If a condition such as blood pressure that formerly was under control becomes worse, that’s a sure sign you’re under too much stress.

6. Becoming argumentative: You may argue too much with siblings or other family members about the level and quality of care you provide. You may not even be able to listen to what they have to say.

7. Social isolation: Whole days could go by without your seeing another adult, besides the loved one you are caring for. You don’t have the energy to get together with friends, and you even get tired even thinking about it. You may have dropped out of activities you used to enjoy, because you feel you’re the only one who can take care of your loved one. You can’t relax and you don’t want to accept help when it’s offered.

If you see yourself in some of these situations, you may be approaching burnout. Remember, you have to take good care of yourself in order to take good care of someone else. Be sure to take advantage of respite services that are available, find someone to talk to about your issues, and pay attention to your own health and well-being, as best as you can.

Hop this is helpful,

Commander Bun Bun

Can Caregivers Take Vacations?

Can Caregivers Take Vacations?

Can Caregivers Take Vacations?

Q. I am a full-time caregiver for my father, … [Read More…]

Must Read: Fluoride May Be Toxic for Seniors


Throughout most of our lives, we hear dentists tell us to use fluoride rinses and to drink tap water because the fluoride in it protects our teeth. When we go to the dentist, at our bi-annual cleanings, we often get a fluoride treatment for this reason. The hygienist also often recommends we purchase a fluoride rinse, so that we get extra protection from cavities and decay. Sounds pretty routine, right? But here’s the shocker: despite what we’ve been told for most of our lives, what many of us don’t realize is that fluoride can actually be quite detrimental to our health, for everyone, especially seniors and children.

Before I begin telling you why, I want to emphasize the importance of this message. As an Elder Law attorney, I typically focus my newsletter and blog on topics related to my practice, such as Medicaid Planning, Estate Planning, and Special Needs Planning. In some instances, when I see something that I believe is vitally important for our readers to know, I feel I must cover it. This is one of those instances. However, I am of course neither a doctor nor a scientist, so please understand that this article is not medical advice and is not intended to diagnose or treat any medical condition.

How Fluoride May Damage Your Bones

As you know, many of us experience loss of bone mass and density as we age. And, of course, we want to do what we can to make our bones stronger, not weaker. However, if you are ingesting fluoridated water or anything with fluoride in it, you could be doing more damage to your bones than you know. According to a National Institute of Health (NIH) study, fluoride exposure alters the quality of bone tissue, and may increase the rate of bone fracture.

According to the World Health Organization, excess fluoride intake causes a condition known as skeletal fluorosis, which has symptoms that are difficult to distinguish from arthritis in its early stages. At first, sufferers may experience:

The second clinical stage of skeletal fluorosis is characterized by:

In advanced skeletal fluorosis (also called crippling skeletal fluorosis), your extremities become weak and moving your joints becomes difficult, and your vertebrae partially fuse together, effectively crippling you.

Skeletal fluorosis was first identified in detail in a 2006 report by the National Research Council (NRC) as an adverse effect that needed to be considered by the EPA in establishing maximum safe levels of fluoride in drinking water. Fluoride is one of the drinking water contaminants regulated by the U.S. Environmental Protection Agency (EPA) because it can occur at toxic levels. But so far, the EPA has done no serious analysis of the potential for skeletal fluorosis in the U.S.

Fluoride and Bone Fractures

Dr. Paul Connett is one of the founders of the Fluoride Action Network (FAN), an organization that seeks to broaden awareness about the toxicity of fluoride compounds among citizens, scientists, and policymakers. Dr. Connett is graduate of Cambridge University who holds a Ph.D. in chemistry from Dartmouth College and taught chemistry and toxicology for 23 years at St. Lawrence University in NY. According to Dr. Connett, there are at least 50 reasons to oppose fluoridation of water.  According to FAN:

Fluoride Can Hurt Your Grandchildren, As Well
Dental proponents of fluoride typically ignore the side effects of it, and focus solely on how it helps protect teeth. What dentists don’t tell us is that fluoride that is ingested provides little to no preventative protection against tooth decay.

In children, too much fluoride can cause dental fluorosis, or a pocking, pitting, and discoloration of teeth due to too much exposure to fluoride (affecting 40% of U.S. children) and the risk to bone health can also start early.

Other Issues Caused by Fluoride

If you think the bone and teeth problems are all that occur, think again. Excess fluoride consumption is so harmful that it’s been proven to cause serious health issues, including damage to your kidneys, thyroid, pineal gland, and even your brain. Here’s a list:

Keep in mind that you have a heightened risk of developing problems from even mild exposure to fluoride, if you:

How Much Fluoride is Too Much?
Unfortunately, most people — especially if they’re drinking fluoridated water on a daily basis — have constant exposure to fluoride. In other words, most of the people who drink fluoridated water are taking more fluoride into their bones than what is being removed, so the level of fluoride in their bones increases steadily over time.

No sufficiently large study has ever been conducted in the U.S. to determine a safe amount of fluoride intake. However, a British study looked at a biomarker for fluoride intake, which is the amount of fluoride excreted over 24 hours in urine. It found that several percent of adults were likely already exceeding an intake of 10 mg/day. The situation may actually be far worse in the U.S., since in Britain, only 10% of the population has fluoridated water, whereas in the U.S. close to 70% does. In 2015, the U.S. Environmental Protection Agency (EPA) announced that the level of fluoride in drinking water be set at the lowest end of the prior optimal range (established way back in 1962) to prevent tooth decay.

Removing Fluoride from Your Water

Please note that you can remove about 80% of the fluoride from your drinking water using a reverse osmosis (RO) filter.  Natural spring water may contain fluoride, but is probably your best bet if you decide you want to avoid fluoride to the greatest extent possible.

You are also exposed to fluoride from many sources other than the obvious lineup of toothpastes and mouth rinses. Far less obvious sources of fluoride, which experts recommend avoiding, if possible, include:

So, you might want to reconsider drinking fluoridated tap water and other products made with fluoridated water, and you may want to do what you can to maintain bone health. For example, try to get enough vitamin D, exercise, don’t smoke, and limit alcohol intake.

Fluoride Should NOT Be Ignored

Should you completely avoid ingestion of fluoride? I’m not a doctor or a dentist or a scientist, so I can’t make that kind of recommendation, but I suggest you do your own research and reach your own conclusion.

Some More Sources of Research Concluding that Fluoride is Harmful:

The Center for Natural Dentistry
Citizens for Safe Drinking Water
The Schachter Center for Complementary Medicine

Some Sources Concluding that Fluoride is Not Harmful:

Campaign for Dental Health
American Dental Association

At the Farr Law Firm, we care about our client’s health, quality of life, and well-being.  Remember, part of taking care of yourself is planning for your future and for your loved ones. If you have not done your own Incapacity Planning or Estate Planning, or if you are caring for a loved one who is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a no-cost initial consultation:

Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797

Critter Corner: Home Modifications for Fall Prevention


Dear Angel,

We just found out that my father will be moving in with us. He is in his 70’s, has Parkinson’s, arthritis, and is in a wheelchair a lot of the time. We don’t have much money to renovate, but we want to make sure our home is safe and comfortable for him. Also, if it is too much for us to handle alone, who can we call for assistance?


Reema D. Ling


Dear Reema,

There are lots of simple modifications you can do to make your home safer for your father that don’t cost a lot or are completely free. By making some minor adjustments, your father can move into your home and hopefully live safely, comfortably, and independently, among his loved ones.

The following are a few simple modifications from the AARP Home Fit Guide, that will help to decrease the likelihood of falls and to make your home all-around more accessible for your father:

• Pick up any clutter that can cause your father to trip, such as newspapers, books, shoes, clothes, electrical cords, and phone cords.

• If you have throw rugs, remove them or use double-sided tape or non-slip pads underneath to secure them.

• If you have stairs, consider installing handrails on both sides.

• Add lamps, light fixtures, and night lights where needed to improve visibility. Consider installing motion sensor lights outside the front and back doors and in the driveway.

• Get some non-skid bath rugs for the bathroom floors, put a non-slip rubber mat or self-stick strips on the floor of the tub/shower and install grab bars inside the tub/shower.  Consider getting a hand-held adjustable shower head installed and purchasing a shower or bathtub seat so your father can shower from a safe seated position.

• Organize your kitchen cabinets so things are within easy reach. Make your cabinets and pantry easier to access by installing pullout shelves or turntables.

• Since your father uses a wheelchair, adapt your home by installing ramps on entrance steps, and mini-ramps to go over high entrance thresholds. You can even widen the doorways an additional two inches by installing “swing clear” offset door hinges.

• To make things more comfortable, since he has arthritis, replace round doorknobs with lever handles, round bathroom faucets with lever faucet handles, and knobs on cabinets with pull handles.

If you are not handy or need professional guidance to make your home accessible for your father, please consider the following:

• Think about hiring a Professional Organizer to help you organize and declutter, making rooms less crowded and therefore less of a fall hazard. You can find a directory of Certified Professional Organizers (CPO) by visiting the website

• Find an Aging in Place Specialist to make your home accessible. You can find a directory of Certified Aging in Place Specialist (CAPS) by visiting the website of the certifying organization – the National Association of Home Builders, at

Of course, if you live in the DC metro area, be sure to check out the Trusted Referrals listed on our website.

Hope this helps!


Laser Shoes, Magic Carpets, & More: Technology to Combat Falls


Q. My parents are snowbirds. Every spring, I pick them up at the Lorton Auto Train and drop them off at their home, and in November, they go back to Florida for the winter. My father has had Parkinson’s for almost 20 years now, and the debilitating disease is taking its toll

If You Don’t Visit Your Parents, It Could Affect Your Credit Score

A close-up of a REJECTED Loan Application document.

Imagine you were really busy with your job, your children, and your everyday life (which is the case for many of us!). Your parents are in their 80’s and, although you love them very much, you rarely get to visit them, let alone call them. Then, you go to buy a car or refinance your mortgage, and try to take advantage of the best interest rate available. The sales person tells you that they are sorry, but your credit score is too low to do so. You are shocked because you pay all of your bills on time. Then, you find out that because you didn’t visit your mom and dad enough, your credit score was lowered. Sounds crazy, right? Well, as of May 1, this has become a reality for those living in Shanghai, China.

That’s right! Under new rules, all citizens of working age who live apart from their mother and father must “visit or send greeting often,” or they will face a harsh penalty — the authorities could intervene to lower the neglectful children’s personal credit scores.

Luo Peixin, Deputy Director of the Law Office of the Shanghai Municipal People’s Government, told reporters that parents will now have the right to file lawsuits against their children for neglect. The credit rating adjustment will be used against those who fail to heed court directives. Beijing introduced a similar law in 2013, but it was criticized as “vague” and “unenforceable,” as it imposed no specific penalty for those who failed to visit their parents. He said that linking credit scores with filial responsibilities would mean the law could be more easily enforced.

Is this something that could happen in the U.S.?

There is probably little risk that any similar law would be enacted in the U.S. However, 29 states, including Virginia and Maryland, have filial responsibility laws making children financially responsible for the care of their indigent parents. These states are: Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia.

Citizens of Puerto Rico are also subject to filial responsibility laws. According to the National Center for Policy Analysis, 21 states allow a civil court action to obtain financial support or cost recovery, 12 states impose criminal penalties on children who do not support their parents, and three states (including Virginia) allow both civil and criminal actions.

Filial responsibility laws in the U.S. aren’t new. In fact, they were initially derived from England’s 16th century “Poor Laws.” At one time, as many as 45 U.S. states had statutes obligating an adult child to care for his or her parents. Some states repealed their filial support laws after Medicaid took a greater role in providing relief to elderly patients without means. Other states did not, and a large number of filial support laws remain on the books.

The filial responsibility laws in the U.S. obligate adult children to pay for their indigent parents’ food, clothing, shelter, and medical needs – including nursing home care. When the children fail to do so, nursing homes and government agencies can bring legal action to recover the cost of caring for the parents. Not only can they sue you for the money, but in some states, as mentioned above, adult children can go to jail if they fail to provide filial support.

Although some say that filial support laws are rarely enforced, they have in fact been used throughout the last century, and started increasing over the last half of the 20th century, with more and more cases are hitting the courts.

In 1931, the New Jersey Supreme Court compelled three adult sons to contribute to their father’s support in the case of Glassman v. Essex County Juvenile Court.  In 1959, a New Jersey Court in Terenzio v. Nelson upheld a New York State Filial Responsibility statute as not being penal in nature and therefore enforceable in New Jersey. As a result, a financially able son was required to pay his mother’s unpaid hospital bills totaling $4,338. Also in 1959, a New Jersey court in Pavlick v. Terenski found that although the plaintiff owned a house and furniture, both were required for her shelter, and due to her physical condition and advanced age, she could not earn money to support herself and unless she received support from her sons, she would become a public charge. Therefore, she was “poor” within the meaning of the statute and her sons were required to cover their mother’s monthly living expenses. In the 1964 case of Monmouth County Welfare Board v. Coward, the New Jersey Court compelled the son of a pauper woman to pay one-third of her welfare allowance per month even though the son had offered to support the mother in his home.

More recent examples include two 2012 cases.  One was a 2012 North Dakota case, where Elden Linderkamp had to pay Four Seasons Healthcare $104,276.62 for his parent’s care (Four Seasons Healthcare Center, Inc. v. Linderkamp). And one was a 2012 Pennsylvania case, where John Pittas received the nursing-home bill of $93,000 for his mother, and was held liable (Health Care Retirement Corporation of America v. Pittas).

In Virginia , nursing homes frequently sue the adult children of residents who run out of money and didn’t bother to get their parent on Medicaid, but these cases typically get settled or tried in the lower courts so we don’t have any high court decisions to cite.

Please read our blog post “More Filial Responsibility Cases are Ending Up in Court,” for more details on filial responsibility cases.

Plan Ahead So You Don’t Fall Victim to Filial Support Action

The only way you can make sure you do not fall victim to a filial support action is by planning ahead. Children need 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 me.  And the best time to do Medicaid Asset Protection planning is now.  Whether your parents are years away from needing nursing home care, 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 us any time to make an appointment for a no-cost introductory consultation:

Fairfax Elder Law Attorney: 703-691-1888
Fredericksburg Elder Law Attorney: 540-479-1435
Rockville Elder Law Attorney: 301-519-8041
DC Elder Law Attorney: 202-587-2797

Life Insurance Proceeds Not Subject to Debt Collection

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Estate and Probate Attorney

So you just finished probating the estate of your great Aunt. In the process you find out that you are the beneficiary of her $1,000,000 life insurance policy.  Wow, a big pay day! While you feel bad about the death of your aunt deep down, a part of you is elated (I know, sounds really wrong).  Why, because you are thousands of dollars in debt, and you need to put your children through college.  Your plan is to use a portion of the life insurance proceeds to pay off your debt, while keeping cash on hand to pay for your children’s tuition.  But those debt collectors see that $1,000,000 differently and think “Finally, a chance to collect on my judgment!”  They start demanding the policy, threatening you that they will place a lien on it and take it all for themselves. With these debt collectors breathing down your throat, you don’t know what to do.

Fortunately, New Jersey law gives you the tool to say, “No! (Or in Jersey speak, shove it!) That money is mine.  Your response can be, “If I decide to pay you with that money, that will be my business.” New Jersey law (N.J.S.A.17B:24-6) says if you are a beneficiary of a life insurance policy, you are entitled to the proceeds of that life insurance and creditors cannot come after you for that money to collect the debt. The law says that is permitted.  Now there are some exceptions (of course) and some beneficiaries cannot protect their money under this law.  One of those exceptions is if the beneficiary was the insured and the money is paid to his or her estate.  Another exception is if the person buys a policy on behalf of another and is the policy owner.

There is one other catch-all within the law that allows creditors to go after a life insurance policy.  The law says you cannot take the policy out on another with the intent to defrauding creditors.  Going back to the example above, if you take out a policy knowing you are going into debt and intend to shield your money by paying insurance premiums instead of your debt, then you are in trouble and not going to have the protection of this law.

So the take away of this law is that life insurance proceeds paid upon the death of another are yours and creditors cannot get them.  But try to hide your money in life insurance policies, and the creditors will grab that policy as fast as they can.

To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

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