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In-Home Care Legal Considerations
Legal matters become even more complicated during the senior years, making organization critical. As you discuss in-home care options with your senior loved one, take the opportunity to help her or him make sure legal affairs and documents are in order.
The Internet is an invaluable source of information regarding legal matters for seniors. Start getting informed by visiting the following resources:
- The Law Issues for Consumers section of the American Bar Association’s (ABA) website
- The ABA’s Commission on Law and Aging
- The ABA’s Guide to Wills and Estates
- Lawyer locator tools on the National Academy of Elder Law Attorneys’ and ABA’s websites
Advance Health Care Directives
These are legal documents through which individuals specify the types of medical intervention and long-term care choices to be made on their behalf in the event they become seriously ill or incapacitated.
Advance directives come in two forms:
- A living will, which provides instructions for the types of health care that should be provided.
- A durable power of attorney for health care, which appoints a person to make health-related decisions on the individual’s behalf when the individual is incapacitated.
Both forms of advance directives are recommended. To make certain they are followed, seniors should discuss them with their loved ones and give copies to responsible family members, a personal physician, and other trusted individuals.
All 50 states and the District of Columbia recognize the validity of advance directives, but state laws vary as to the details. Seniors should seek advice from their state’s bar association, local health care providers, physicians or attorneys when creating advanced directives.
Wills and Trusts
Wills enable individuals to declare who gets their personal assets when they die. Wills prevent legal problems and potential conflicts among family members. If you do not have a will, your assets could be distributed according to applicable law. Many estate attorneys suggest that both spouses have a will and update it regularly to reflect changes in the estate.
Trusts come in several types, including a living trust. They are created for many reasons, including to avoid probate (in which a court decides settlement and tax value of an estate), to help care for a dependent family member and to assist in estate and tax planning. Some trusts make an individual ineligible for Medicaid. As with any legal document, it is best to consult an attorney when setting up a trust.
Guardians and Conservators
When individuals do not complete durable powers of attorney to specify whom they want to act on their behalf in the event of incapacity, a court can appoint a guardian or conservator after the individual becomes incapacitated.
A guardian is appointed to make health care, personal and financial decisions for a person who is incapacitated through a physical or mental disability. A guardian could have the legal right to decide where the person will live and the medical treatment (s)he receives.
A conservator is appointed to oversee the financial affairs of a person who is unable to do so. The conservator takes control of the dependent person's assets and must handle them, including investing, for the welfare of the protected person. Once a conservator is appointed, a dependent person may not liquidate his or her assets or determine how the monies will be invested without the consent of the conservator.
Family members and interested parties may petition the court to appoint a guardian or conservator. For instance, adult children could petition the court when aging parents becomes unable to take care of themselves.
Collecting Important Information
Seniors can be a big help to their loved ones by organizing their important legal documents as well as medical, financial, and other personal information so they can be easily accessed in the event of a medical emergency or crisis situation.
We recommend recording essential information and location of key documents in a large notebook and organizing copies of pertinent documents in expandable files. Seniors should review this collection with loved ones, so they know where to find it. Following are information and documents to include:
- Birth certificate
- Social Security records
- Health and life insurance information, including policy numbers
- Names and addresses of primary care physician and medical specialists as well as medical history
- Special arrangements made for health care, including advance directives
- Funeral pre-arrangements
- Medicare documents
- Trust documents
- Sources of income and assets
- Bank statements and safe deposit box locations
- Mortgage papers
- Investment records
- Negotiable securities
- Credit card information
- Most recent income tax return
- Loan papers
- Military discharge papers
- Marriage license
- Divorce papers
A special note: Seniors should keep current with financial records, as medical and long-term care can deplete assets and could change eligibility status for Medicaid. Current financial records need to be maintained to provide proof of eligibility.
The information above is for reference purposes only and does not constitute legal advice. Always consult a lawyer regarding your specific situation.