Five Legal Issues Caregivers Face

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.

What are the issues that Caregivers Face?

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.

3 Legal Documents Caregivers Need to Manage an Elder’s Healthcare

Laws tend to be very strict and there is not much flexibility when it pertains to a loved one’s healthcare. These laws involve who can make medical decisions, receive status updates, and be involved in conversations with medical professionals. Though these laws intend to keep confidential information private, they can be troublesome for those who are caregivers for their family. There are ways around this but the legal permissions must be established beforehand. If you wait until they are required, you will not be guaranteed the best outcome as they will be more effective if prepared in advance. Many families do not realize they require legal documents to take care of the ones they love, causing them a handful of stressful situations when they need to make medical decisions for a loved one but aren’t allowed to legally. This may lead to a situation where you are legally not allowed to make any medical decisions for them or even access their medical information. An option some individuals choose is going to court and petitioning for guardianship in order to allow them to be able to make these decisions. This all could be avoided if families work and prepare all the necessary documents in advance with an Elder Care attorney, so you aren’t stuck with the harder and more expensive option of petitioning for guardianship.

3 Legal Documents Caregivers Need to Manage an Elder’s Healthcare

What Three Documents Are Needed?

  1. HIPAA Authorization Form: This document which is short for the Health Information Portability and Accountability Act indicates the standards for keeping an individual’s medical information and all records private. This makes it illegal for any medical professional to release your medical information and records without it being at the request of the patient for which this form is used. This is a very important form, and all families should be in possession of it as HIPPA forms give authorization to doctors to keep specific family members informed of their loved one’s medical status. It is a simple form that is not hard to complete and a blank one should be available at most doctor’s offices for patients. Just let your loved one sign the form and this will provide you with access to all their healthcare information.
  2. Power of Attorney: This document has many names, two of them being, medical power of attorney and health care proxy document. This document essentially allows an individual to designate a loved one or any one of their choosing to handle healthcare decisions on their behalf if they become unable to. With a HIPAA form, you are allowed to have access to an individual’s medical records and information, but with a power of attorney you are also designated to make medical and healthcare decisions on their behalf as well. When preparing this document though, the person granting this access must be in the right mind or this document can not be executed. This is to ensure the individual who needs the care is choosing a trusted individual that they believe will honor their wishes if they were to become incapacitated.
  3. Advance Health Care Directive: This document is also known as a Living Will, and allows an individual to indicate their wishes for end-of-life care before any medical emergency. End-of-life decisions are extremely hard on families and a Living Will will help avoid the pain this brings to your loved ones and allows them to know what you would have wanted. This document can specify the treatments you want or do not want and other medical decisions. One of the most important parts of this document is for an individual to indicate if they want any form of resuscitation to occur if they stop breathing and if they agree to be put on a life support system if needed. These decisions are extremely difficult to make and should not be left for your family, as it will only make the situation harder when you can make it simple by preparing these documents in advance.

Preparation in Advance Is Necessary

It is extremely important for these documents to be prepared beforehand as they will be there if a medical crisis occurs in your loved one’s life. Once a healthcare emergency occurs, it will be too late to prepare these documents. Sitting down with your family and having a conversation about preparing these documents in case a situation may occur in the future, will spare you and your family from any unnecessary stress and uncertainty. Health is not guaranteed so all adults should discuss their wishes with their families while they still have their health.

How Can an Elder Attorney Help

Unfortunately, many families do not start to look into Elder Care planning until a medical crisis occurs. This is why this conversation should happen in advance in order to ensure this crucial step of Elder Care planning is in place and your loved ones are taken care of. Indicating your interests is the first step to take in your Elder Care planning journey. An Elder Care Attorney can help make this process easier and help you and your family stay informed of all your options to ensure your interests are met. An attorney will not only draft all these crucial documents but will help ensure these documents are accurate and legally binding. Having this conversation with your family is hard enough, so hiring an Elder Care attorney will allow you to create the best plan and guarantee you won’t have to worry if you or your family face a medical crisis. As a part of your Elder Care planning, an attorney will help with the HIPAA forms, drafting of the Power of Attorney, and drafting of the Living Will, so you and your family have the peace of mind that there is a plan in place in case of medical emergencies.

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.

5 Frequently Asked Questions About Senior Guardianship

When an individual begins to age, it may be time to consider taking action to obtain guardianship of the senior. With age, it may become difficult to make logical decisions that would reflect one’s best interest due to the onset of Alzheimers, Dementia, etc. If an individual becomes incapacitated or unable to make decisions on their own, it is a good time to consider filing the necessary paperwork for guardianship. This will allow you to guarantee that your loved one is in good hands, as you will be responsible for making medical and financial decisions on their behalf. Since obtaining guardianship of a senior is a lengthy and challenging process, here are five commonly asked questions regarding Senior Guardianship.

Frequently Asked Questions About Senior Guardianship

  1. What is guardianship? Guardianship refers to individuals who have not yet had the opportunity to appoint a power of attorney for healthcare necessities or financial decisions. Typically, the individual in need of guardianship has become incapacitated and in need of a responsible person to make decisions according to the senior’s best interests. Guardianship allows the person to have a say in where the incapacitated individual lives, the type of healthcare they receive, and activities in their daily lives. On the contrary, a conservatorship grants a person the right to manage an individual’s financial assets and decisions. Oftentimes, it may be difficult to come to a consensus regarding the best time to file for guardianship and select which person should be the legal guardian. 
  2. What does court-appointed guardian mean? This person has a court-appointed order and right to handle the incapacitated individual’s affairs. It is their responsibility to act in the individual’s best interest to benefit the incompacitated individual. Some duties a court-appointed guardian may have pertains to selling property, managing finances, making healthcare decisions, nursing home admission decisions, etc. During the hearing, the court will make a decision regarding whether the person seeking to become a guardian is the right fit for the position. In the case that more than one individual seeks to become the guardian, then one will be selected for the purpose of medical and health related decisions, while the other will be selected for financial decisions. Typically, the court would give preferance to the incapacitated individual’s family members, such as the spouse or children because these individuals are most familiar with the needs and preferences of the incapacitated senior.
  3. When is the proper time for a guardian to be appointed? A guardian will be appointed when the court finds it evident that the incapacitated individual is unable to make decisions for themselves. The individual is unable to make logical choices regarding their physical and mental health, as well as their financial assets. The incapacitated individual has the right to appoint an attorney in the case they feel that they do not need a guardian and can make decisions for themselves. If an individual’s health and financial assets are suffering immensely, then an emergency guardian may be selected. 
  4. What tasks is the guardian responsible for accomplishing? In regards to making decisions on behalf of the incapacitated individual, the guardian is responsible for paying bills, managing real estate and other financial prospects, as well as deciding how finances are handled. The guardian must determine where the individual will live and must monitor their residence. Additionally, the guardian must provide consent for medical treatments and monitor non-medical services. The guardian should attempt to maximize the incapacitated individual’s freedom to the greatest extent possible in order to give them some independence. Lastly, a guardian must report to the court at least annually regarding how the incapacitated individual is doing and how the financial, as well as medical decisions are being managed. 
  5. As a guardian, will I receive compensation for my role? Court-appointed guardians are actually subject to compensation for their work in addressing the incapacitated individual’s financial and medical needs. If the guardian is a family member, such as a spouse or a child, then the services will be free. They will most likely not charge their incapacitated loved one in regards to obtaining compensation for their work. If a private or public guardian is appointed, then they are paid directly from the incapacitated individual’s estate if they can afford the costs. The compensation amount is typically approved by the court.

For further Guardianship information please contact the Law Office of Inna Fershteyn at 718-333-2394 to effectively file for guardianship when your loved one becomes a senior.