Legal Issues of Caregiving: Planning for Incapacity
As a caregiver, you should begin making legal preparations soon after your loved one has been diagnosed with a serious illness. People with Alzheimer's disease and other long-term illnesses might have the capacity to manage their own legal and financial affairs right now. As their disease advances, however, they will need to rely on others to act in their best interests. This transition is never easy, but advanced planning allows patients and their families to make decisions together for what may come.
Clearly written legal documents that outline your loved one's wishes and decisions are essential. These documents can authorize another person to make health care and financial decisions for you, including plans for long-term care. If the person being cared for has the legal capacity — the level of mental functioning necessary to sign official documents — he or she should actively participate in legal planning.
To give your loved one the best care possible, obtain legal advice and services from an attorney. If the person you're caring for is age 65 or older, consider hiring an attorney who practices elder law, a specialized area of law focusing on issues that typically affect older adults. As you plan for the future, ask the attorney about the following documents:
- Power of attorney:This document gives a person (known as the principal) an opportunity to authorize an agent (usually a trusted family member or friend) to make legal decisions when the principal is no longer competent. There is no standard power of attorney; thus, each one must be geared toward an individual's situation. It is important for the caregiver to be very familiar with the terms of the power of attorney because it spells out what authority the caregiver does and does not have. The agent should make multiple copies of the document and give one to each organization or company with which the principal does business.
- Durable power of attorney for health care: This document appoints an agent to make all decisions regarding health care. These decisions include those regarding health care providers, medical treatment, and—in the later stages of the disease—end-of-life care. A durable power of attorney for health care allows the agent to authorize or refuse any medical treatment for the principal. This power only goes into effect once the principal is unable to make decisions for himself or herself and is activated by the principal's attending doctor.
- Living will: A living will allows a person to state, in advance, what kind of medical care he or she desires to receive and what life-support procedures he or she would like to withhold. This document is used if a person becomes terminally ill and unable to make his or her wishes known. A terminal illness is defined as one from which a person's doctor believes there is no chance of recovery. A living will also can be used if a person becomes permanently unconscious. To be considered permanently unconscious, a patient must be viewed as having no reasonable possibility of regaining consciousness or decision-making ability. Two doctors must make this determination. Laws on living wills vary from state to state.
- Living trust: This document enables a person (called a grantor or trustor) to create a trust and appoint a trustee to carefully invest and manage trust assets once the grantor is no longer able to manage finances. A person can appoint another individual or a financial institution to be the trustee.
- Will: A will is a document created by an individual that names an executor (the person who will manage the estate) and beneficiaries (those who will receive the estate at the time of the person's death).
If you cannot afford an attorney, legal forms can be accessed through resources including books and the Internet. Legal issues may be discussed with a social worker or clergy free of charge.
A caregiver of an individual who no longer has the legal capacity to execute powers of attorney or trusts might have to become that individual's guardian or conservator. A guardian has the legal authority to make decisions about the lifestyle and well-being of another person. The decisions a guardian may make include where a person may live, what care and medical treatment will be provided, and what religious and educational activities will be made available. A conservator has legal authority to manage another person’s financial affairs