Legal Issues for Caregivers

Learning Objectives
After completing this module you will learn about:
• The basics of an estate plan:
• Powers of Attorney, Wills, and Advance Directives
• Trusts & Guardianship
• DNR (Do Not Resuscitate)
• Legal Record Keeping

This program provides general information and is not intended to be legal or financial advice.  Contact the local area agency on aging for assistance.  Staff of Social Security Administration, Centers for Medicare and Medicaid Services, and attorneys should be consulted about individual situations, as needed.

Index/Content of this Module  

The information in this module contains an overview of legal documents that may be important in ensuring the legal and financial security of your family member. You will also review tips on storing and accessing completed legal documents. You also will find information on obtaining assistance that you and your family member can use in finding help about benefits that your family member may qualify for.

Click on a topic below to go to that area of the page:

1. Guardianship
2. Financial Power of Attorney
3. Medical Power of Attorney
4. Designation of Guardian
5. Directive to Physician (“Living Will”)
6. Out of Hospital Do Not Resuscitate Order (DNR)
7. Trusts
8. Probate
9. Wills
10. Legal Record Keeping
11. Resources
12. Sources

Guardianship

You may need a court-appointed guardian when you:
• Lack the ability to make personal or financial decisions
• No less restrictive alternative is available (No estate plan!)

The Texas Legal Services Center Legal Hotline and most aging services professionals  emphasize that if people have the appropriate legal documents in place ahead of time they can avoid guardianship in most cases.

For Assistance
• Call local area agency on aging at 2-1-1
• Call Legal Hotline for Older Texans 1-800-622-2520
• See publication  “Alternatives to Guardianship” online in .doc format

A Guardian is necessary when a person is “incapacitated” and the needs of that person cannot be taken care of in another way.  A person is considered incapacitated when he or she suffers from a physical or mental condition that causes that person to be substantially unable to manage his or her financial affairs, or is substantially unable to provide for his or her food, clothing or shelter.

There are two types of guardianship:  guardian of the person and guardian of the estate.

Some indications that a person may need a guardian include:
• Severe memory loss
• Severe cognitive impairment
• Extreme confusion
• Impaired judgment
• Hallucinations or paranoia
• Vulnerable to abuse or self-neglect
• Lack necessary medical care
• Living in unsanitary housing or conditions
• Uncertainty handling one’s financial affairs.

People referred to legal resources for potential guardianship are frequently victims of abuse, neglect or exploitation. Sometimes they are being physically abused by caregivers who hit them, withhold food or verbally strike out at them. Other clients lose their Social Security checks to family members or friends who take their money and leave them with inadequate resources to pay for basic living needs. The most common form of mistreatment in elderly clients is neglect. Either the caregiver fails to provide for the needs of the elderly individual or the older adult gradually loses the capacity to take care of the activities of daily living and suffers neglect.

Should Guardianship be avoided?  Guardianship is a costly procedure. It will involve at least two attorneys (one for the Applicant and one for the proposed Ward).  If there is an estate, a corporate surety bond will also be required. The guardian may have very limited authority. No major action can be taken without court approval. There is also a requirement to file an Annual Account statement and pay an annual bond premium.

Financial Power of Attorney

With a financial power of attorney, a person, known as the “principal” appoints an “agent’ to carry out financial and other activities, as instructed by the principal. Often the person designated is the spouse but can also be children, other family members, or others.

It is advisable to name a primary agent and an alternate agent.  You may choose whether the POA becomes effective immediately or only in the event of illness/disability.

The Power of Attorney should have language indicating that it is “durable” (remains in effect even after the person is legally incapacitated).   A Power of Attorney may be revoked by the principal.

The Power of Attorney must be notarized; it does not need to be witnessed.

You can find the Power of Attorney form in our Legal Forms section.


Medical Power of Attorney

A Medical Power of Attorney allows you to designate an “agent” to make health care decisions when you are unable to make those decisions for yourself.  The Medical Power of Attorney is broader in scope than a “Living Will” – it allows your agent to make all medical decisions. You may give specific instructions to provide or withhold certain care or treatment.

The document must have two witnesses; it is not notarized.  At least one of the witnesses cannot be a relative, anyone that would inherit or take under the creator’s will, the attending physician, anyone that works for the attending physician, or most employees of a health care facility.

You can find the Statutory form in our Legal Forms section.

Designation of Guardian

The Designation of Guardian allows you to designate the person you want to serve as your Court-appointed Guardian, if necessary.   The Designation of Guardian protects your agent under the Power of Attorney.  It requires two witnesses and a notary.

Directive to Physician, Family or Surrogate – “Living Will”

The “Living Will” is an advance directive to the physician to withhold life sustaining procedures in the cases of irreversible conditions or terminal illness when the person is not likely to survive.  It allows the individual control over end of life decisions.  The document
must be signed in the presence of two witnesses;  no Notary is required.

A person can revoke their “Living Will” at any time by stating it is no longer in effect.  The limitations on witnesses are the same as for the Medical Power of Attorney.

The form is available online in our Legal Forms section.

The person creating the “living will” can tell the physician specific kinds of care they want if they become unable to make medical decisions.

It is important to note that laws about advance directives are different in each state so be sure you have the correct form for the state of residence.

This directive is used only when the patient is either terminal or has an irreversible condition.  Examples of situations that may fit in one of these categories are as follows:
• People who have cancer that has spread
• Chronic kidney failure
• When a lot of help is needed with daily activities
• Severe infections such as pneumonia that require hospitalization.

Out of Hospital Do Not Resuscitate Order (DNR)

An Out of Hospital DNR Order is a type of advance directive that instructs paramedics and other healthcare professionals not to perform cardiopulmonary resuscitation (CPR) or other life support measures (except for comfort) in an emergency situation.

An out of hospital DNR must have two witnesses and must be signed by the person’s physician.

The completed form must be carried or the person must have a special identification bracelet.   Some people are now having “DNR” as a tattoo on the chest. A DNR order becomes part of the medical chart.

A standard form is available from hospitals or online from the Texas Department of Health at
or our Legal Forms section.

Trusts


A trust is a legal document that designates a person or entity (“Trustee”) to hold legal title to property for the benefit of someone else (“Beneficiary”). A trust can be revocable or irrevocable and covers distribution of income and principal.

Trust beneficiaries consist of:
• An income beneficiary (a person entitled to receive distributions for the Trust during his/her lifetime) or
• A remainder beneficiary (the person who receives the Trust assets when the Trust terminates)

There are two major types of trusts:

• Testamentary Trust
• A trust created under a person’s will
• Usually for benefit of minor children or “wayward” child
• “Inter vivos” or Living Trust
• A trust created by someone during his or her lifetime; usually revocable
• The creator of the trust is usually the initial trustee and primary beneficiary
• Successor trustee is ultimate beneficiary
• Useful for managing assets of incapacitated individuals
• The trust, not the individual, owns the assets, therefore assets are not subject to probate
• May avoid claim for Medicaid reimbursement against homestead
• Should also have a “pour over” will, which provides all assets pass under the terms of the living trust.

Probate

Probate is a court process to validate will or determine heirship.  If there is no will the court will determine heirs at law.

When is Probate required?
• If assets are not accessible, or cannot be transferred to proper parties by other means
• If debts are owed to creditors
• May require executor or administrator
• Will require posting of bond and supervision by court, unless independent administration is authorized.
• Executor not required if no debts at the time of death and will clearly indicates the disposition of all assets.

Alternatives to Probate include:
• Joint account with right of survivorship
• Beneficiary Designation
• Gift of Remainder Interest
• Living Trust

Wills


A will should name an executor.

The duties of an Executor are:
•Gather the financial assets, personal possessions, and real estate that belonged to the testator
•Inventory financial assets, personal possessions, and real estate
•Pay appropriate debts
•Distribute remaining assets to the beneficiaries named in the will.

Why do you need a will?  Without a will, property passes in accordance with state law, and not necessarily the way one would choose
•If married, passes to spouse, unless…
•With second marriages, Decedent’s property passes to the children
•If unmarried, passes to Decedent’s children, or their descendants, or to Decedent’s parents, or siblings, or their descendants
•Decedent may have separate or community property.

A will is a legal document that ensures a person’s assets be distributed the way he or she wants.  The will designates an Independent Executor or Administrator who will handle the administration of the estate.   The will needs to be effective for the state in which the person lives so be sure you have a current will that is valid in the state of residency.  “Holographic” is a hand written will.

The will must be signed by the person making the will, the “testator”. The testator must be of sound mind (capable of reasoning and making decisions).  A will must be witnessed by two persons who are at least age fourteen and are both present when the will is signed.  The will should be “self-proved” by having an attached self-proving affidavit signed by the testator and the witnesses and be notarized.  Notarizing the will avoids the witnesses having to appear in court to “prove up” the will.

Legal Record Keeping

Keep the original copy of the will in a fire-proof location, such as a bank safe deposit box or fire proof safe. Keep a copy of the will and originals of all other documents in a secure place at home where family members can access them in emergencies during non-business hours. Note that a will or advance directive left on a computer is not legal.

The individual can revoke advance directives and other legal documents at any time.

Resources for Caregivers

Call
• 2-1-1 throughout Texas. Provides information and access to health and human service information for all ages
• 1-800-252-9240 to find local Texas Area Agency on Aging
• 1-800-677-1116 – Elder Care Locator to find help throughout the U.S.

Online
   • Online education, resources, links, frequently asked questions
   • Benefits Check-up for an online way to determine benefits for which someone qualifies.

Assistance available through the Area Agency on Aging for caregivers:
• Information and referral
• Caregiver education and training
• Caregiver respite
• Caregiver support coordination
• Case management
• Transportation assistance

Assistance available through the Area Agency on Aging for persons age 60 and older:
   • Benefits counseling
• Ombudsman – advocacy for those who live in nursing homes and assisted living facilities
• Home delivered meals
• Congregate meals
• Light housekeeping

Note:  Not all services are available in all counties. Call the Area Agency on Aging for information about a specific community.

Sources

Written by Zanda Hilger, M Ed, LPC, Elder Family Caregiver Education, Area Agency on Aging, as revised in 2008 with assistance from:  Steve Katten & Gary Westenhover, Elder Law Attorneys

Revised in 2009 by Zanda Hilger and Betty Purkey

Elder Law Handbook, 3rd Edition, 2004, Senior Citizens Liaison Committee, Tarrant County Bar Association.

Online and print information from Centers for Medicare Services (CMS)

Permission is granted to duplicate any and all parts of this program to use in education programs supporting family members caring for elders.

This program is one module of a comprehensive caregiver education program provided by the area agency on aging.