The MLO Minute, By Jennifer Simons, Esq.
November is National Family Caregivers Month. Perhaps it is no coincidence that November is also the month in which we celebrate Thanksgiving and often get together to spend time with and be thankful for our family. Caregivers are needed for various reasons, such as caring for a family member with a disability or an aging parent. Careful planning can help to make the job of a child caregiver easier and less cumbersome.
As the elder population continues to grow, it is likely that at some point a child may need to takeover or coordinate the care of an aging parent. This may include simple tasks such as assisting with household chores, running errands, or help with managing finances. However, many times it includes much greater assistance, such as that needed when caring for a parent with dementia or Alzheimer’s Disease. For instance, when a parent is no longer able to live alone or care for himself the caregiver may need to find alternate living arrangements or 24 hour care at home. This process can become more difficult and time consuming if the parent does not have the proper legal documents in place permitting the child caregiver to act on behalf of the parent. It is essential that an aging parent have a Will, Living Will, and a Financial and Medical Power of Attorney, and that the child caregiver know where to find this information.
A Will provides for how the parent wishes his estate to be divided at death. Without a Will, an individual’s estate will be divided and distributed according to the intestacy laws of the state in which they reside at their death. The intestacy laws of each state determine how property will be divided and distributed if an individual dies without a Will. Many times this will not be in accordance with how an individual wished for their estate to be divided.
A Living Will allows an individual to express in advance his desire for medical treatment if he should become incompetent and be in an end-stage medical condition or permanent state of unconsciousness. It also allows an individual to appoint a Health Care Agent to make end-of-life decisions on his behalf. A Living Will tells the appointed Health Care Agent (many times a son or daughter) what type of care the individual wants in that situation (antibiotics, feeding tube, cardiac resuscitation, etc.). These can be very painful decisions for a child to make on behalf of a parent if they do not know what the parent would have wanted. By executing a Living Will a parent will spare a child from making these decisions and the parent will in turn receive the type of care that they desire.
Lastly, a Financial and Medical Power of Attorney is probably one of the most important documents to have, as it gives the appointed Agent the legal authority to act on behalf of the parent (principal) and to make financial and medical decisions if the parent is not able to make these decisions on his own. This document is vital to allowing a child caretaker to pay bills, do banking on behalf of a parent, apply for Medical Assistance if necessary, make decisions regarding where the parent will live or what type of medical care they receive. A Durable Power of Attorney will remain in effect even after an individual is determined to be incapacitated. If a Power of Attorney document is not put in place while an individual/parent has capacity, it may be necessary to petition a court to appoint a legal guardian to make decisions for the parent if they later become incapacitated and do not already have a Power of Attorney. The process of obtaining guardianship is typically much more expensive and time consuming compared to executing a Power of Attorney document.
Being a family caregiver can be exhausting both physically and emotionally. Planning ahead and having a discussion with aging parents can help alleviate some of the complications that can arise if the necessary legal documents are not in place. Getting together with family over the upcoming holidays may provide the perfect time to have these important discussions with elderly parents.