Essential Estate Planning Documents for Caregivers

A Comprehensive Guide to Securing Your Loved One's Future

November is National Caregiver month. This month is a time to honor those who are caring for their aging parents. You may already be acting as a caregiver for one or more of your parents who are no longer able to look after themselves.  Or, due to their age, you may have be more involved in caring for your aging parents. As part of your caregiving, you need to know the essential estate planning documents for caregivers. 

Self-Care Is Crucial

Caregiving is tough -- admirable, but tough. As a caregiver, you juggle a lot of roles. You also have additional responsibilities beyond taking care of your loved one.  You may be a parent, an employee or boss, and or a spouse.  When juggling so many roles, it is important to receive help and emotional support from others to avoid burnout, depression, and anxiety.

So, take care of yourself. Maintain a healthy diet. Exercise to relieve stress. Schedule a bit of time for yourself to do something you enjoy. Taking time out for yourself is not selfish.  On the contrary, if you are burned out, you will be much less able to care for others.

Check That All of the Necessary Estate Planning Documents Are in Place

You can also alleviate the stress of caregiving by checking if your aging parents have legally valid and up-to-date estate planning documents in place.  And, if they do not, encourage them to have these important documents prepared. You certainly should not try to force them to do so.  Nor should you influence their estate planning decisions.  But, talk to them about the value of those documents.

If you are a caregiver, you need to know that you can make decisions for them. Your parents need to legally permit you to act and make decisions for you. This is true whether they have indicated that they would like you to act as their caregiver if the need arises, or if you have already taken on that role. 

Plan for the Unexpected

Your parents or spouse need estate planning documents in place before they become too ill to make those decisions for themselves.  And, you can only execute those documents when you are of sound mind.  If one is in the later stages of dementia for instance, he will not legally be able to execute those documents.  

Executing these documents before they are needed is smart.  Always plan for the unexpected. And, getting these documents in place is being responsible.  

Creating these documents now ensures that there will be no delays or uncertainty that might hinder your loved one’s care. If you have the documents necessary to know and carry out your parents’ wishes for their care, regardless of the situation, you can rest assured that they will receive the care they desire.  

The Essential Documents

• Financial power of attorney.

  A durable financial power of attorney is typically effective immediately and remains in effect even after the person who makes it becomes mentally incapacitated. If you are named as your parents’ agent under a durable financial power of attorney, this authorizes you, as the caregiver, to make financial decisions and manage financial matters on your parents’ behalf without concern that it will become ineffective if they develop dementia or a similar condition. For example, you will be allowed to pay bills, manage financial accounts, or sell property on behalf of your parents.

  As an agent under a power of attorney, you are legally bound to put aside your own opinions.  Instead, you make the decisions that are in the best interests of your parents.  Decisions you know they would have made themselves (to the extent you know what they would have chosen).

• Medical power of attorney.

  A durable medical power of attorney enables you to manage your parents’ health care if they are unable to do so. As with a financial power of attorney, it is crucial for your parents’ medical power of attorney to be durable. This ensures that it will continue to be legally valid even if they develop a condition that renders them unable to communicate their wishes or make their own decisions about their medical care.

  The medical power of attorney will authorize you or another trusted individual, as the health care agent, to make important—even life and death—decisions. Decisions concerning the treatments they will receive if they are unable to make those decisions themselves.

  Certain decisions, for example, whether to hire a paid caregiver, may involve both medical and financial considerations and could be authorized under either or both the durable financial and medical powers of attorney.  As is the case with the financial power of attorney, your own opinions must be set aside.  As an agent under a power of attorney, you must make the decisions that your parents would have made.

• Living will.

  Your parents’ living will allows them to communicate their end-of-life wishes in writing.  So, you, as their caregiver, will not have to agonize over a difficult decision about whether to keep them on artificial life support or a feeding tube, authorize a particular treatment, or ask medical professionals to resuscitate them if they stop breathing.

  These are decisions that are best made well before a medical crisis occurs. No caregiver wants to be in the position of guessing what their beloved parent would have wanted.  Nor do you want to suffer through disputes with family members who may have conflicting opinions about a parent’s wishes.

• HIPAA authorization.

  The Health Information Portability and Accountability Act (HIPAA) requires medical records to be kept private unless an individual consents in writing to sharing of protected health information with a named individual. If you are your parents’ caregiver, they should fill out a HIPAA authorization permitting doctors to keep you informed about their medical conditions and treatments.

Moving to a Different State

Warning: The legal requirements for estate planning documents vary from state to state. Have your parents have moved from another state to live with you? They may need to have their documents reviewed or redone to ensure that they are valid in your state. 

Avoiding Guardianship

It is crucial for your parents to put these documents in place before they develop any condition involving a cognitive loss that would prevent them from having the capacity to sign a legal document. If they develop dementia, for example, and are not able to understand the objective or content of a power of attorney or other document, they will be legally unable to execute the document. In that case, you will have to go to a court and ask to be appointed as your parents’ guardian to care for their physical or medical needs or as their conservator to manage their financial affairs.

This takes time and money, involves public testimony and evaluations about your parents’ health and living situation. Essentially you are asking the court to declare your parent mentally incompetent.   By doing this, you may hurt your relationship with your parent.  Fights may ensue with family members.

Guardianships are completely avoidable if the necessary documents are prepared in advance. 

We Are Here for You

Caregivers do not always remember to take steps to lighten their load. It is important not only to recognize your own emotional needs and develop skills to manage the stresses of caregiving but also to reach out to others for help when you need it. We can put your mind at ease by assisting your parents with the necessary estate planning documents to ensure that you (if you have been asked to act as their caregiver) can act quickly to make decisions on their behalf.

Please call us today so we can help your family feel confident that plans are in place to protect their best interests for the future.