The U.S. population is increasingly aging, and adults of all ages are stepping into the role of helper or caregiver for a family member. More and more, attorneys are being asked to provide at least preliminary advice on navigating the many legal challenges of caregiving. The ABA’s Commission on Law and Aging developed the following 10 basic legal “To Do’s” for caregivers to understand and address:
- Understand decisional capacity. Be aware that capacity is not an all-or-nothing thing. A family member may have some capacities at some times while gradually losing others. Financial capacity and financial judgment often decline before other functions, so it is important to get help in evaluating and supporting elders with compromised capacity.
- Know what legal authority you have. Caregivers often have to assist a loved one with decision-making, sometimes informally and sometimes formally. Legal authority comes in three ways: through powers of attorney for financial and/or health care decisions; by default through surrogate laws for health decisions in many but not all states; or through guardianship or conservatorship proceedings in local courts, which should be a last resort. Each of these pathways has different rules for the exercise of authority.
- Appoint a health care agent. Your loved one and you should complete a Health Care Power of Attorney. This legal tool appoints someone to make health-care decisions for you when you are unable to make them. You can also provide guidelines for how decisions should be made. But before completing one of these, talk with loved ones or advisors about whom you trust as a decision-maker and what your life priorities and goals of care are.
- Complete a financial power of attorney. Do not rely only on joint bank accounts. They can be fine for limited amounts of money for daily bill paying, but not as the primary tool of financial management. Joint bank accounts raise questions about intended ownership, gifting, misuse of funds, rights of creditors and inheritances that can make a mess of family finances. Someone should be designated to manage the financial affairs of someone being cared for through a power of attorney, but the documents need to be tailored to individual needs and circumstances. Otherwise, they can be a blank check for financial exploitation.
- Manage Social Security/veterans benefits. Managing someone else’s Social Security benefits requires being appointed as a representative payee. Powers of attorney are not recognized by the SSA. Once approved, checks are paid to the caregiver, to be managed on behalf of the beneficiary. The Veterans Administration has a similar procedure.
- Know your rights of access to health information. Health care providers cannot disclose a patient’s personal health information without consent, except in limited circumstances. While a loved one has capacity, they can give you a right of access to such information by written instruction or by naming you as their agent under a health care power of attorney. Without that, health care providers have broad discretion under the law to determine what is in the patient’s best interest.
- Know the signs of abuse, neglect and exploitation. Caregivers are the front line of protection against abuse and neglect, as well as financial exploitation of loved ones. Be knowledgeable about the signs of abuse and exploitation, and know what action to take when you see red flags.
- Know your rights if you face family responsibilities discrimination. Working while also caregiving places enormous demands on caregivers. Being criticized, downgraded or fired because of a need to take periodic and sometimes unplanned time off to care for a loved one may constitute family responsibilities discrimination. Most federal and state statutes do not prohibit FRD, but legal protections based on other laws may.
- Understand your rights under the Family and Medical Leave Act (FMLA). The FMLA entitles someone to up to 12 weeks of unpaid job-protected leave per year to care for one’s parent, spouse or child. But the act applies only to employers with more than 50 employees. Some employers voluntarily provide paid family and medical leave; check your employee benefits.
- Consider personal care agreements. Caregiving often requires a financial sacrifice, especially if work must be cut back or given up because of caregiving responsibilities. Loved ones who receive care from a family member sometimes wish to provide compensation to that caregiver. This sounds like it should be a pretty simple arrangement, but it can create serious problems with health benefits such as Medicaid, tax questions and family conflict. Use a formal personal care agreement to spell out terms and expectations.
The above are just the basics. See the Commission on Law and Aging website for more information and resources.