Guest blogger Christopher J. Berry, Certified Elder Law Attorney from the Elder Care Firm, helps walk family caregivers through some of the most common legal issues
Note: Berry will be presenting at the Solutions for Family Caregivers Expo on Saturday, October 14 at the Suburban Collection Showplace in Novi. His presentation begins at 9:30 a.m. For more details on the event, visit our Solutions for Family Caregivers Expo page.
Becoming a caregiver for a loved one can be overwhelming. In addition to the physical, medical, and emotional needs of your loved one, you must also prepare for the legal issues you may face as you provide care. It is best to take care of legal issues now before your loved one’s condition become worse.
Planning ahead allows your loved one to be involved in the process and it ensures that you have the legal documents in place that you will need in the future. Early planning also allows you to work through complex legal issues that may arise with long-term care, such as Medicaid planning and designation of agents. The first step is to determine the legal documents you need and begin the process of having those documents drafted and executed.
Legal Documents Caregivers Need
In many cases, your family member must sign each legal document before witnesses and/or a notary public. This requirement is to ensure that a person is of sound mind and not under duress.
If your family member’s condition worsens, you may be required to petition the court for permission to perform certain actions. Getting the court involved can be costly, time-consuming, and frustrating. Therefore, take steps now to ensure you have the required legal documents executed to avoid additional stress and expense later.
Durable Power of Attorney
This is one of the most important documents you can have as a caregiver. A durable power of attorney gives you the authority to transact business in your loved one’s name. Anything your family member can legally do in his or her name, you can do for your loved one. Examples of business you can transact with a durable power of attorney including opening and closing financial accounts; filing and settling lawsuits or claims; buying and selling property; paying bills; and, receiving income.
In addition to allowing you to transact business, a durable power of attorney remains in effect even though the person becomes incapacitated due to a mental or physical condition. Being able to conduct financial transactions for your loved one after he or she can no longer manage financial affairs is very important.
Last Will and Testament
In addition to a power of attorney, a will is just as important to have executed now while your loved one is still of sound mind. It is important that your loved one decide how his or she wants the estate distributed and to whom. It is also an appropriate time to discuss how your loved one prefers the arrangements for a funeral when the time comes.
When you are discussing your family member’s wishes for his or her estate and funeral, you should also discuss what life-support or life-sustaining procedures he or she would like to withhold or provide if a doctor determines there is no chance of recovery. A living will allows a person to make these decisions for himself or herself instead of leaving it up to a family member or physician. In Michigan, we include living will type language inside of the health care power of attorney.
Health Care Power of Attorney
A health care power of attorney allows your loved one to appoint an agent to make health care decisions if you are unable to do so for yourself. This can include choosing medical providers and authorizing or denying medical treatment. It is very important to have a health care power of attorney as a caregiver because you will be in many situations where you may need to make medical decisions for your loved one.
Your loved one may want to consider establishing a living trust to protect his or her property during his or her lifetime. You or another person can serve as agent to manage the property for the benefit of your loved one according to the terms of the trust. When your family member passes away, the property in the trust is distributed according to the terms of the trust.
Legal Record Keeping
In addition to ensuring you have the legal documents you need to take care of your family member, you also need to set up a detailed record keeping system. You should keep all original legal documents in a fire-proof safe or a safe deposit box. Keep copies of documents secured in a binder can be very useful — you won’t always be searching for the document you need. Using an online bookkeeping system can make keeping up with income and expenses much easier. The main thing is to keep detailed records and copies of all documents, invoices, receipts, and other financial documentation.
Getting Help When You Need It
No one expects you to understand and know all the legal issues that you may face as a caregiver. You are not expected to navigate the system alone, including the probate court. Hiring an experienced estate planning attorney who focuses on elder law can be one of the best steps you can take to protect you loved one and yourself.