Caregivers: Five Steps to Eliminate Legal Hurdles

The U.S. population is increasingly aging. Family members of aging loved ones are increasingly stepping into the role of helper or caregiver. Fulfilling these responsibilities requires a great deal of time, energy and focus. Caregivers should be able to act with minimal complication and resistance. Too frequently, caregivers struggle to overcome legal hurdles when making decisions for their charges. There are five steps caregivers should take to eliminate frustrating, and often costly, legal challenges.

1. Determine the legal authority needed. If an aging person merely needs guidance or prompting with decision-making, this can usually be accomplished informally. If, on the other hand, the caregiver must step in and act on behalf of the aging person, this will require formal (or legal) authority. Legal authority to act on a person’s behalf comes from one of two source: (i) through powers of attorney for financial and health care decisions (POA authority), or (ii) through guardianship and conservatorship authority obtained through a probate court (court authority).

Each of these sources has advantages and disadvantages. For example, POA authority is more efficient and less costly than court authority, but it is less powerful and more likely to be abused than court authority. Financial institutions may reject POA authority while medical care providers may accept it without question. POAs may be impotent if specific language is omitted from the document. And, since POA authority does not override the aging person’s will, court authority may be the best solution if the aging person insists on making bad decisions. It is important to determine as early as possible what types of decisions will be involved and whether the aging person resist the assistance of the caregiver. Regardless of the source of authority, the goal is to have a decision maker with the authority to make appropriate decisions with the least amount of resistance.

2. Prioritize Power of Attorneys. POAs come in two varieties:

• Patient Advocate Designations (PADs): The aging person, or “patient”, gives another person, the “patient advocate”, the power to make medical treatment decisions if the patient is physically or mentally unable to do so. This document may also give authority over end-of-life decisions.
• General Durable Power of Attorneys (GDPOAs): The aging person, or “principal”, gives another person, the “agent” or “attorney-in-fact”, the power to enter into financial and legal transactions on behalf of the principal. The authority continues even if the principal later becomes incapacitated.

Generally, POA authority is preferred over court authority. Going to court should be a last resort. This would be the case if there is no POA in place or if the POA is defective or rejected.

3. Review Existing Legal Documents. Clearly written legal documents that grant authority to act for an aging person are essential tools for caregivers. It is a mistake to assume that a POA will work when needed. It is important that the documents are prepared correctly and contain the necessary authority, or limits on authority. These should be reviewed by an elder law attorney to ascertain if the POAs are appropriate to the situation or need to be replaced.

4. Understand Medicaid & VA benefits for Long-Term Care. Every senior’s financial situation, marital status and care need is unique. Long-term care planning—whether in advance or at the time of need—is never a one-size-fits-all task. Medicaid and VA benefits are needs-based benefits that can be used to pay for long-term care. Each operates under complex rules that seem to change and evolve regularly. It is crucial therefore plan well in advance of the need for long-term care if at all possible. It is easy to unknowingly make mistakes which can be time consuming and costly. A caregiver should always seek the counsel of an elder law attorney about Medicaid and VA eligibility rules and possible advance planning strategies.

5. Build a Team of Experts. A carefully selected caregiving team of experts is a necessary complement to an aging person’s plan of care. The more support a caregiver has, the less likely they are to experience caregiver burnout and the more sustainable the plan of care will be. Keep in mind, relatives and friends are not the only ones to recruit for a care team as not everyone has the personality, time or resources to assist. Team members can include the following professionals:

• Physicians (Primary Care and Specialists)
• Elder Law Attorneys
• Geriatric Care Managers
• Social Workers
• Financial Advisors
• Pharmacists
• Home Care Agencies and Professional Caregivers
• Adult Day Care Centers
• Charities, Organizations and Support Programs

Taking on the role as a caregiver for an aging loved one is a difficult job. To avoid unnecessary stress and confusion, caregivers should complete these five essential steps to eliminate finding themselves in frustrating, and often costly, legal challenges.

Norman E. “Gene” Richards is a partner in our Livonia office where he focuses his practice on estate planning and elder law. He assists clients with the development of customized estate plans to address their specific needs, including family owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs. He may be reached at (734) 261-2400 or nrichards@cmda-law.com.