Stepping In, Stepping Up: Legal Issues for Family Caregivers
Mom has always been very independent. When it comes to financial matters, she's held her cards close! But Mom was recently diagnosed with early-stage Alzheimer's disease. Her adult children have noticed piles of overdue bills on the coffee table, and they also realized that Mom was being scammed by telemarketers who pushed magazine subscriptions and phony sweepstakes offers. Mom agrees that she needs help, and will need more help down the road. Now what?
When dementia, stroke, head injury or another incapacitating condition means that a loved one no longer can make healthcare decisions, family may be called upon to make these decisions on their loved one's behalf. With today's increased awareness about healthcare planning and end-of-life decisions, more families are having these conversations ahead of need, and creating advance directives, such as a living will and healthcare appointment.
But planning for healthcare decision making is only part of the picture. It's also much better to discuss financial and legal matters long before the need arises. For example, if your loved one were to lose the ability to act independently, someone else would need to step in to manage their bills, taxes, insurance, investments and all the other business matters of life. From a legal perspective, there are two ways to designate that person: through a durable power of attorney or by a court-created guardianship.
Durable Power of Attorney
Losing the ability to understand and decide things for ourselves is a risk we all face. The longer we live, the greater the risk becomes. A durable power of attorney is the best way to say ahead of time who we want to manage our financial and personal affairs if we can't do it for ourselves. A durable power of attorney is an important, powerful and flexible tool in estate planning. It gives a person control over who will act for them if they were to become incapacitated. Ordinarily, a power of attorney is a temporary document; you might create one to grant someone else the ability to pay your bills or sign documents while you're on a trip, for example. Powers of attorney are called "durable" when the person clearly states that this appointment is to continue in effect even in case of his or her incapacity. It's important to talk things over as you set this up. Make sure your loved one's wishes are clearly understood—and that you are willing and able to serve.
If your loved one is no longer competent to set up a durable power of attorney, discuss the situation with their doctor and attorney. If your loved one is incapacitated in one or more areas, the attorney can help you evaluate the need for a guardianship and decide how to proceed.
A guardianship is a legal proceeding in which a court-supervised guardian is appointed to administer the affairs of a "ward," someone who is incapable of acting on his or her own. A legal guardian occupies a position of trust and responsibility. Guardians are empowered to make essential decisions for the person who is incapacitated.
The law aims to protect as much of a person's freedom and autonomy as possible. If your loved one is incapable of making any personal, medical or financial decisions, a full guardianship may be established. But if your loved one only needs help in some areas but not in others, a guardianship with more limited powers may be appropriate.
Your loved one can state ahead of time that they would like you to serve as guardian, should the need arise, and the judge will usually take those wishes into account. Serving as a legal guardian is a big responsibility, but also a rewarding one. If you take on this job for a loved one, you will know that loving, kind and prudent decisions are being made on their behalf.
Here is another legal area to keep in mind if you are stepping in to coordinate care at home for your loved one. Busy with their careers and other time-consuming tasks, more families today are hiring private in-home care to support their loved one's well-being. They might hire a caregiver to come in for a few hours a week, or full time. The caregiver may help their loved one with bathing, dressing, going to the toilet, and other grooming and hygiene tasks.
Caregivers provide housekeeping services and laundry. They can prepare nutritious meals, provide medication reminders, and drive clients to healthcare appointments or social opportunities. They provide understanding supervision for clients with memory loss. Above all, they provide human companionship that helps clients avoid depression and isolation—and they provide peace of mind for family, as well. Many families can attest that home care is the ingredient that lets them keep their loved one at home.
It's important to know that if you hire a caregiver privately or through a registry, you automatically take on certain responsibilities, risks and liabilities. It begins with hiring—how do you know that the person you're considering is reliable, honest and good at their job? Will you do background checks and call references? Don't forget that you also are responsible for federal and state taxes, and could be liable if the caregiver is injured on the job. To avoid wearing all these extra HR hats, consider hiring through a reputable agency that screens, trains and supervises their caregivers. Be sure that the agency you select will send a bonded, licensed caregiver and carries liability insurance and workers' compensation for their employees.
Note: This article does not constitute a complete list of the legal options available for family caregivers. Laws vary from state to state. Consult with an attorney or other qualified professional to learn about durable power of attorney, guardianship, employment laws and other legal matters that would apply to your family.
For information on topics related to home care and healthcare, visit our Home Care and Healthcare Advocacy group on LinkedIn.