As your loved ones get older, they may become more physically and/or emotionally vulnerable. Unfortunately, this presents a situation in which they can easily be taken advantage of. To adequately prepare for this situation in the event that it occurs, legal planning is necessary. In many cases, families fail to consider these arrangements. In other cases, the plan they established does not have a durable legal foundation and thus, fails. With the correct knowledge, you have the opportunity to prepare early on to protect your legal interests when caring for a senior family member. As you begin to explore your legal options, there are some problems you may face as a caregiver.
1. Problems with Power of Attorney
It is extremely important to draft a power of attorney (POA) to establish someone you trust to make decisions as a healthcare or financial proxy. A POA document establishes an individual (the “principal”) to assign a trusted relative (the “agent”) to make healthcare, legal, and financial decisions on their behalf. This document can also specify how much power the principal allows or limits to the agent. A POA ensures that if you are unavailable/unable to make decisions for your senior family member, another person can step in and take your place. However, this decision often comes at the expense of family relationships when someone is chosen over another person. Additionally, it may be a complicated process when filing with your bank. Despite the challenges a POA may present, it is important to draft one as soon as possible even if your elderly family member is still mentally capable. In some cases, they may still want your help with minor responsibilities. It is also best to be well prepared for the future in case there is a sudden change in their mental or physical status.
2. Seeking Guardianship of an Elder
Oftentimes, family members do not prepare for possible deterioration in the senior’s medical status. Thus, the family fails to file a Power of Attorney document prior to the senior's sudden loss of competence. Alternatively, in some cases, the person that was assigned the role of caregiver abuses their power. To appoint a new caregiver, long and expensive guardianship proceedings are usually needed.
3. Preventing and Prosecuting Elder Abuse
The National Center on Elder Abuse (NCEA) defines elder abuse as “any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to an older adult.”Mentally vulnerable senior citizens are most likely to fall victim to abuse. Those with Alzheimer’s disease or dementia are unable to defend themselves and often unaware of what is taking place. Even senior citizens who are mentally capable can still fall victim to abuse such as a caregiver that steals from their home.
4. False Accusations of Abuse or Neglect
Senior family members with dementia may have a tendency to sabotage their caregivers and themselves. They may falsely accuse caregivers of elder abuse when they forget who the person is or don’t get what they want. Unfortunately, even if their abuse accusation has no real claim to it, caregivers may have to deal with APS investigations and/or legal action. To prepare for such possibilities, you should keep records of the activities you provide, when the senior’s doctor diagnosed them with dementia, what stage their dementia was initially diagnosed at and how it has progressed, and lastly, when they had to give up responsibilities such as cooking and driving.
5. Estate Administration
Estate administration involves the collection and distribution of assets to beneficiaries. To make this complicated process easier, a will should be drafted well in advance. A will is a legal document that details an individual’s financial and social wishes, and goes into effect after they pass away. Problems arise when family members fail to draft a will before their loved one passes away, fail to update it as more assets are discovered, or fail to share it with the appropriate family members. While a will simplifies the legal aspects of estate administration, it can cause divisiveness between competing family members.
How an Elder Care Attorney Can Help
If you are a new caregiver for an elderly loved one, it is important to seek advice from an attorney with abundant experience in elderly care. If you have been a caregiver for years, but have come across an unexpected legal issue, it is also important to consult an experienced professional. It is never too early to start looking into a well developed elder care plan. It is extremely important to be prepared in case a sudden event occurs causing a deterioration in health or a case of elder abuse arises. It is just as important to protect yourself from unfortunate false accusations on your loved one’s behalf when they are mentally disabled. For further information on how to start your Elder Care planning, please contact the Law Office of Inna Fershteyn at (718) 333-2394 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.