Legal Tips for Seniors and their Caregivers
The number of Americans over age 65 is rapidly increasing. According the AARP, the number of older African Americans increased from 8.3 percent to 9.0 percent from 2006 to 2016. The Census Bureau reports that this growth will continue over the next few decades. As the number of older African Americans increases, they and those who care for them must prepare for their care and finances. This article will provide legal tips for seniors and their caregivers.
The Obligation of Care
While caring for a parent may be a moral obligation, most states have refused to convert that moral obligation into a legal one. However, a few states require children to care for parents; an increasing number hold children responsible for their parents’ medical bills. If you live in one of these “filial responsibility” states, you will want to begin making plans for your parents’ care as soon as possible.
Caring for a parent is a serious undertaking. Therefore, all states have laws that prevent and punish elder abuse. While the standards vary from state to state, at a minimum, caregivers must keep their elders clean, fed, healthy, and safe.
The loss of memory and other mental functions is one of the hardest parts of aging. Some medications and conditions can impair mental function. Many medical conditions, including Alzheimer’s disease, can cause dementia. African Americans experience Alzheimer’s at twice the rate of whites, so African American caregivers will want to pay close attention to laws that govern capacity.
Diminished capacity can create legal issues and complicate existing legal matters. Any legal document signed by a person without her full faculties can easily be invalidated by a court. Therefore, elders should only sign legal documents at times when their capacity cannot be questioned. Moreover, caregivers should obtain important documents, information, and contacts while the person is still of sound mind.
If the senior has memory issues or other challenges when she enters your care, you may need to approach the courts to obtain guardianship. The court will apply the laws in your state to determine if there is a need for a guardian. Then, the court will evaluate your application to determine your fitness for the role. This process can be time consuming, so it should be started as soon as possible to avoid delays.
As people age, medical issues increase. Therefore, caregivers must provide medical care or arrange for medical care for their seniors. But medical care creates multiple legal issues. Because medical conditions can deteriorate quickly, caregivers should plan by getting the following documents as soon possible. These documents must be completed by the senior while she is at full mental capacity. Otherwise, they are not valid.
- Living Will – Unlike a “will” that leaves property to people, a living will provides instructions for what should be done if a person falls into a coma or vegetative state. The person should specify her wishes as clearly as possible in accordance with the laws of her state.
- Do Not Resuscitate (DNR) or Do Not Intubate (DNI) orders – While a living will is a legal document, DNRs and DNIs are medical documents. Each must be signed by a doctor. These forms will keep medical personnel from using life-saving measures against the senior’s will.
- Durable Power of Attorney for Healthcare – A standard power of attorney only covers financial matters. Living wills are limited to end-of-life issues. A durable healthcare power of attorney names an individual (the healthcare agent) who is responsible for making day-to-day medical decisions for the senior when she is unable to decide for herself.
- (Health Insurance Portability and Accountability Act) HIPAA Release – A daughter may regularly take her mother to her doctor’s appointments. Yet, she will be at a disadvantage if her mother is unable to speak or consent. Legally, the doctor cannot discuss her mother’s health with her without her mother’s permission. A HIPAA release allows a patient to give her doctor a list of trusted persons who are allowed to receive sensitive health information. Most medical offices provide them on request.
Medical care is expensive. Therefore, caregivers must also manage the senior’s finances. A durable power of attorney gives the named person (the “financial agent” or “legal agent”) the authority to act on behalf of the senior. Depending on how it is drafted, it can include the power to handle everything from simple banking transactions to real estate matters. Again, this document should be completed by a person of sound mind.
As previously mentioned on this site, African Americans are far less likely to write wills than other Americans. This failure to engage in estate planning causes the Black community to lose land and wealth. African American caregivers should encourage their seniors to create wills or trusts while they are able to do so.
In addition to these legal documents, caregivers should have lists of all health and life insurance policies. Moreover, social security or pension accounts should be reviewed. If necessary, a caregiver can apply to be a representative payee to accept these funds on behalf of the senior.
Caring for family and loved ones as they age can be both rewarding and stressful. However, the stress can be reduced by handling legal issues before problems arise. Hopefully, these legal tips for seniors and caregivers has been helpful. But because so many legal issues arise during caregiving, you may need professional legal help. Use The African American Attorney Network to find an attorney near you who can help you and your senior develop a solid legal plan for the future.
DISCLAIMER: Nothing contained herein should be construed as legal advice or the creation of an attorney-client relationship. Should you need legal advice please seek the assistance and advice of an attorney in our directory or one that you locate by other means.