10 legal tips for caregivers

Whether you have been a caregiver for years or just recently took over primary caregiving duties for your loved one, it is never too late to establish an organized legal plan for your loved one's future. The American Bar Association (ABA) provides 10 tips to help you manage or prevent legal issues:

1. Understand Decisional Capacity

Decisional capacity is not all-or-nothing. Your loved one may have some capacities at times but be gradually losing others. It is important to get help to evaluate capacity. This will give you a clearer picture of your loved one's current level of functioning, ways to improve capacity, and the likely progression of symptoms. Locate local resources at eldercare.gov.

2. Know What Legal Authority You Have

Caregivers often assist their loved one with decision making. For some this may involve helping write out checks and providing helpful reminders. For others, it is necessary to formally assume legal responsibility for decisions. Legal authority comes in three ways:

  • Through a powers of attorney for financial and health-care decisions

  • For health-care decisions only (many states allow a close family member to step in as surrogate decision-maker for treatment decisions, typically in a next-of-kin order)

  • Through a guardianship or conservatorship proceeding in court (this should be a last resort)

3. Appoint a Health Care Agent

It is important for everyone to complete a Health Care Power of Attorney. This document appoints a person to make health-care decisions for you when you are unable to make them. Forms are available from many sources, but keep in mind that completing this form requires thoughtful reflection and conversation about one’s values and priorities in life. Consider the resources at ambar.org/healthdecisions.

4. Complete a Financial Power of Attorney

While joint bank accounts can be fine for daily bill paying, they should not be used as a primary tool of financial management. As the ABA writes,

Joint bank accounts raise questions about intended ownership, gifting, misuse of funds, rights of creditors, and inheritance that can make a mess of family finances. You and your loved ones should designate someone trustworthy to manage your financial affairs through a power of attorney. Be careful not to assume that powers of attorney are simple, standardized documents. They are not. They need to be tailored to individual needs and circumstances. Without that, a power of attorney can be a blank check for financial exploitation. Certain powers need special consideration in drafting, such as powers to make gifts, change beneficiaries of insurance, or to sell one’s home. Financial reporting to another family member is an important option to consider.

5. Manage Social Security

In order to manage your loved one's Social Security benefits, you must be appointed as a representative payee. Note that powers of attorney are not recognized by the Social Security Administration. Once appointed, checks are paid to the caregiver.

6. Know Your Rights of Access to Health Information

Health-care providers can not legally disclose a patient’s health information without consent, except in limited circumstances. The ABA writes,

While your loved one has capacity, they can consent to your access to information. But being an agent under a health care power of attorney legally authorize access to health information when your loved one lacks capacity. Without that, health care providers have broad discretion under the law to determine whether it is in the patient’s best interest to share information with you or any other family member.

To learn more, go to hhs.gov/hipaa/for-individuals.

7. Know the Signs of Abuse, Neglect, and Exploitation

Older individuals with diminished capacity due to aging are an especially vulnerable group. Caregivers are the first defense against abuse and financial exploitation of loved ones. Know the signs of abuse and exploitation and take action when necessary. Learn more about spotting and responding to elder abuse and exploitation at ncea.acl.gov.

8. Know Your Rights if You Face Family Responsibilities Discrimination (FRD)

Being a full-time employee and caregiver can be extremely demanding. The ABA writes,

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 or FRD. FRD is employment discrimination based on one’s caregiving responsibilities and not based on quality of work. Most federal and state statutes don’t prohibit FRD, but legal protections based on other laws may, such as laws prohibiting sex discrimination, hostile work environment, or discrimination based on association with a person with a disability. If you think you are encountering FRD, complain to the Equal Employment Opportunity Commission, www.eeoc.gov.

9. Understand your rights under the Family and Medical Leave Act (FMLA)

The FMLA entitles you to up to 12 weeks of unpaid leave per year to care for a parent, spouse, or child without risking your job. However, the act only applies to employers with more than 50 employees and requires you to have worked for the employer more than a year. There are employers that voluntarily provide family and medical leave even though they are not required, so be sure to check your employee benefits. Learn more at dol.gov/whd/fmla.

10. Consider a Personal Care Agreement

The demands of caregiving result in many caregivers cutting back on their work hours. The ABA writes,

Loved ones with financial means who receive care from a family member sometimes wish to provide compensation for the caregiver. This sounds like it should be a pretty simple arrangement, but it is not. 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. To do this, consult with a lawyer experienced in elder law. See “Find a Lawyer” at www.NAELA.org.

Source: Ten Legal Tips for Caregivers from the ABA Commission on Law and Aging