Full Answer
Get your caregiving legal questions answered. Below are answers from Charles P. Sabatino, a member of the AARP Caregiving Advisory Panel, to questions submitted by visitors to the Caregiving Resource Center. This page will continue to be updated with new questions and answers. Have a query or conundrum? Ask the AARP Caregiving Advisory Panel.
These documents can authorize another person to make health care and financial decisions, including plans for long-term care. If the person being cared for has the legal capacity -- the level of mental functioning necessary to sign official documents -- they should actively participate in legal planning.
Every person's circumstances are different and laws vary from state to state. If you need legal advice or other expert assistance, seek the services of an attorney or other competent professional. Q: My stepmother has been in rehabilitation at a long-term care facility for 30 days and she's not improving.
That said, caregivers that do not go into a caregiving arrangement ready and empowered to face the economic challenges ahead are more likely to experience stress and other financial repercussions.
If you are appointed as her guardian, you will have to handle her affairs under the supervision of the court and file regular accountings with the court. It all adds up to an expensive and cumbersome form of financial management, intended to protect the interests of the incapacitated person.
A: While your mother was alive, she could have entered a formal care contract with you and paid you then, or revised her will and estate plan to leave you a larger share of the estate. If there were a care contract that was still unpaid at her death, you might have a possibility of asserting a contractual debt, but that is typically an uphill battle. Absent that, it's too late. There may be a moral case to be compensated but not much of a legal one. Your only hope now is that your sister agree to give you some of her share of the estate out of the goodness of her own heart.
The proceedings are complicated enough to require the help of legal counsel as a practical matter. Your mother will also have a right to legal counsel, and the proceedings may involve an investigation of her circumstances, an assessment of her mental capacity, and a court hearing . If you are appointed as her guardian, you will have to handle her affairs under the supervision of the court and file regular accountings with the court. It all adds up to an expensive and cumbersome form of financial management, intended to protect the interests of the incapacitated person.
If your father appears to lack the capacity to manage his financial or personal affairs, you might want to have him assessed, if possible, ideally by a multidisciplinary geriatric center. Check with local hospitals or university medical centers for one. His primary care physician can be helpful, too. If you believe he lacks capacity and is being exploited, you can seek a court-appointed guardian or conservator, but that will involve legal expenses, court proceedings, and an investigation of the facts. However, an appointed guardian may be able to recover lost property and even seek annulment of a marriage, if fraudulent.
An ideal first step, if your brother can be persuaded, is to bring everyone together with a neutral professional adviser, such as a geriatric care manager, to review your mom's needs, options for meeting them, the extent of responsibility each child is willing to assume, and the personal and financial needs of each person. Transparency and openness in decision making with your mother may not make your brother agreeable, but it is the best medicine to prevent legal disputes later on.
If your mother has the capacity to make medical decisions and clearly makes her own decision to refuse, then there is nothing you can do, even as her caregiver. She has a legal right to make an unwise decision. The responsibility for the consequences would be hers, not yours.
You can also report your suspicions to the local Adult Protective Services agency. Your identity as reporter will be kept confidential. They have authority to investigate and take action if they confirm facts indicating abuse or exploitation.
Your first step is to make sure you've got the legal documents you need to let you act in your loved one's best interests.
Living wills can also be used if your loved one becomes permanently unconscious. Two doctors need to state that your loved one has no reasonable chance of regaining consciousness or the ability to make decisions. Laws on living wills vary from state to state. Living trust.
Legal issues may be discussed with a social worker or clergy free of charge. Clearly written legal documents that outline your loved one's wishes and decisions are essential for caregivers. These documents can authorize another person to make health care and financial decisions, including plans for long-term care.
Family Caregiver Alliance (FCA) seeks to improve the quality of life for caregivers through education, services, research and advocacy. Through its National Center on Caregiving, FCA offers information on current social, public policy and caregiving issues and provides assistance in the development of public and private programs for caregivers. For San Francisco Bay Area residents, FCA provides direct family support services for caregivers of those with Alzheimer’s disease, stroke, ALS, head injury, Parkinson’s disease, and other debilitating health conditions that strike adults.
You name a trustee to oversee the trust both while you are alive, and to distribute the trust to beneficiaries when you die.
Needs to be someone you trust, as this person has a lot of control over your finances. If you don’t have someone you trust, you should consult a professional. Spouses might not have access to all of your funds unless everything, including investments, is held as joint property.
In a will, you appoint someone to be the executor or administrator who will pay your final bills and see that your wishes are carried out
As you face aging and the need to make plans for your future, you face having to make legal decisions about many aspects of your lives. These legal decisions not only protect you from others doing things you might not like to you, they also protect family and loved ones by giving them guidance in the care that you would like to receive.
A guardian has the legal authority to make decisions about the lifestyle and well-being of another person. The decisions a guardian may make include where a person may live, what care and medical treatment will be provided, and what religious and educational activities will be made available.
Tips on Legal Planning for Caregivers. Plan ahead before your loved one gets sick. “Making legal plans in advance is important for several reasons: Early planning allows the person with dementia to be involved and express his or her wishes for future care and decisions.
Keep a DNR available at all times. “An out-of-hospital DNR is only necessary if your loved one does not want to be revived by paramedics in the event of a fatal accident outside of the hospital (car accident, heart attack, severe fall at home, etc.). Be sure to have this document available at all times so that you can quickly show it to a first-responder. If you are not able to produce an out-of-hospital DNR to a first-responder, they are legally obligated to use all resuscitative measures, which can be traumatic for both the patient and the family. Out-of-hospital DNRs must also be signed by a doctor (in most states), so, if your family member has decided they do not want to be revived, then it is crucial to get this done. You may have signed a DNR in the hospital or at another facility, but those documents do not apply outside of those facilities.” – Three Documents Every Caregiver Should Have, Cariloop; Twitter: @cariloop
Use a third-party when preparing documents. “Sometimes, even when approached with sensitivity and respect, loved ones resist discussing such personal matters and plans. Know that you can only do your best to help them. If they refuse to accept assistance or share information but can still make their own decisions, you may not be able to do anything. In that case, be there for whatever help they allow you to provide and choose to act differently in terms of your own long-term planning. Often it helps to bring in an objective third party, such as a counselor, doctor, lawyer or mediator.” – Amy Goyer, Family and Caregiving Expert at AARP, Legal Preparations for Caregiving, AARP; Twitter: @AARP
The proceedings are complicated enough to require the help of legal counsel as a practical matter. Your mother will also have a right to legal counsel, and the proceedings may involve an investigation of her circumstances, an assessment of her mental capacity, and a court hearing . If you are appointed as her guardian, you will have to handle her affairs under the supervision of the court and file regular accountings with the court. It all adds up to an expensive and cumbersome form of financial management, intended to protect the interests of the incapacitated person.
Keep original documents on hand and keep them safe. “Keep the original copy of the will in a fire-proof location, such as a bank safe deposit box or fire proof safe. Keep a copy of the will and originals of all other documents in a secure place at home where family members can access them in emergencies during non-business hours. Note that a will or advance directive left on a computer is not legal.” – Legal Issues for Caregivers, Family Caregivers Online; Twitter: @CaregiversTx
While those with Alzheimer’s disease and other forms of dementia are considered the most vulnerable, cognitively sound individuals are also prone to being defrauded and scammed.”. – Marlo Sollitto, 5 Common Legal Issues That Caregivers Face, AgingCare; Twitter: @AgingCare.