Legal Issues for Family Caregivers

There are two phases of legal planning for a caregiver:  How to protect the independence, assets, and family of the person needing care in the good days and during the time of needing help due to mental or physical incapacity.   The best planning provides maximum personal independence, protection of assets, and protection of other family members. The following are some legal techniques that can help accomplish planning goals.

Phase One:  The Good Days (or mostly good days).  This phase assumes that the person creating a plan is competent.  This means they are mentally and physically able to contract.

         •  Sign a Financial Power of Attorney.  This gives the person listed the right to do modest financial business on behalf of the person who signs the documents.

         •  Sign a Health Power of Attorney and Living Will.  This document provides for the person who can make health decisions with the treating health professionals, and also allows for an election of the type of care to be provided when death is near. 

         •  Sign a Last Will and Testament.  This document will indicate who is in charge of the finances after death and who is to receive the decedent’s property.

         •  If a caregiver spouse or the person being cared for is a Veteran, contact the Veteran’s administration or an attorney accredited with the Veteran’s Administration to see what benefits are available to help pay for caregivers.

         If one of the planning goals includes protecting assets for the person being cared for, as well as their spouse or family, there are more complex legal plans that can help.

                  •  Have the individual requiring care sign a revocable trust, providing for others to manage finances and make health decisions.  This trust also covers who is to receive that individual’s assets when they die.

                  •  For a married person, often the healthy, caregiver spouse, can sign a Last Will and Testament, that provides if the healthy spouse dies first, the deceased spouse’s share of the family assets will be set aside for the benefit of the ill spouse, in a manner that continues to provide support but will not interfere with the ability to receive government benefits.

                 •  Single and married people can protect substantial assets if they have the ability to pay their expenses for at least five years. 

Phase Two:  The Bad Days – Incompetency.  At this time the individual being cared for lacks the mental or physical capacity to contract and, therefore, cannot sign legal documents.

         •  It may be possible for the incompetent person’s agents on the financial power of attorney, the health power of attorney, and the Trustee of a revocable trust to work with those documents without the need for a court order.

         •  If there is no financial power of attorney and no health power of attorney, it may be necessary to file papers in the local Court to ask that someone be appointed as Conservator and Guardian for the incapacitated person in order to give someone the legal right to make financial and health decisions for the vulnerable person.  The Conservator makes financial decisions, and the Guardian makes the health and housing decisions.  Many times the Conservator and the Guardian are the same person.  It is necessary to use an attorney to help with this process.

         •  The caregiver needs to consider how to pay for the care required.