This information is provided for educational and information purposes only. It is not legal advice. Please consult an attorney for specific questions on how to comply with Medicaid programs in your state. Also, this information is not medical advice. Please consult a medical professional for specific questions.
Author: Anne Bogardus, Founder and former caregiver
Most caregivers I know take on the responsibility from their heart, wanting to care for their aging parents without considering more practical implications that inevitably come up as caregiving tasks require more and more time and resources. To protect elderly parents and the family caregiver, as well as to prevent misunderstandings with siblings, it’s important to document any verbal agreements in writing. There are a number of documents to use for this purpose, such as a durable power of attorney (DPOA) and caregiver agreement. It’s also important for caregivers to know what kind of care decisions a parent wants them to make if they are unable to make their own decisions by preparing documents that explain their wishes.
A caregiver agreement is important for many reasons. It lays out what the parent expects to be done and what the caregiver is willing and able to provide. If the care requires a significant amount of time that prevents the caregiver from earning money at a job or business, and if the parent is able to pay for care, it lays out how much will be paid to the caregiver for the work that is done. If at some point it becomes necessary for the parent to move to assisted living or skilled nursing and Medicaid funds are needed, the caregiver agreement can be used to show that funds paid to the family member were for care provided to the parent and not gifts that Medicaid requires to be repaid before paying for facility care. An attorney licensed to practice in your state can draft an agreement that conforms with Medicaid requirements if that is a concern. There are also sample caregiver agreement forms available online that you can use if you can’t afford an attorney or are not concerned about Medicaid.
Power Of Attorney (POA)
A power of attorney is an important document to have because if a parent becomes incapacitated either physically (due to a stroke or car accident, for example) or mentally (due to a brain injury or dementia), it may be necessary for someone to make financial decisions on their behalf, such as paying their bills or transferring funds to cover medical expenses. There are different types of POA designations. Some are created for specific purposes, such as signing escrow papers for a house closing. Others go into effect when certain circumstances occur. For caregiving or elder care purposes, one of the most common designations is the Durable POA (DPOA). A DPOA stays in effect until it is cancelled by the person who wrote it, so if a parent gives DPOA to a spouse or adult child, and the parent later becomes incapacitated, the person designated as DPOA can immediately begin managing their affairs.
It shouldn’t need to be said, but based on news reports of abuses by POAs (Mickey Rooney comes to mind), two things must be said. First, a DPOA, or any POA, carries with it a fiduciary responsibility to act only in the best interest of the person who granted the POA. That means, as a POA for a parent, you must not consider how decisions will affect you personally or your parent’s estate, but only how a decision will benefit your parent. Second, and this should be obvious, is that a parent must select a person they can trust to act as their POA.
Medical Care Documents
Making medical decisions for an elderly parent, or even communicating with a doctor on their behalf, becomes complicated when multiple family members have differing opinions. There are several documents that can help to keep the focus on what a parent wants,
Making Health Care Wishes Known
As advances in nutrition and medical science continue to prolong life, an important question for elderly parents to answer and make known to their families is what types of medical procedures they want to undergo and what end-of-life decisions they want to make. This topic can be difficult to discuss but it is a great gift to families when aging parents are able to clearly and specifically state what types of treatment they want to receive in the event they are unable to make these decisions for themselves. Even with their wishes spelled out in a legal document, the decision to not resuscitate or not place a feeding tube, or take any other extraordinary measure to prolong life can be difficult for family members to make. Often, even when a parent’s wishes are clear, it can cause rifts within a family at an already stressful time.
As with other legal issues, how advance health care directives work (and what they are called) differ between states. The legal information site, nolo.com, lists health care directive documents recognized by each state along with the different names each state gives them.
These documents can be classified in three ways: living wills, powers of attorney for health care, and advance directives. Unfortunately, a Google search will yield multiple definitions of these documents, probably because the definitions vary between states. Often the terms “living will” and “advance directive” seem to be used interchangeably. That being the case, when preparing these documents or discussing them with family members, it’s probably best to rely on the names and definitions that apply in the state where the documents are created. Briefly, here is what each document covers based on how states define them.
A living will makes known what types of life-saving measures a person wants taken if they become seriously ill and incapacitated. For example, do they want a feeding tube if they are unable to eat? Do they want to be placed on a ventilator if they are unable to breathe? Finally, and one of the most difficult questions to answer, under what circumstances do they want a “do not resuscitate” (DNR) order to take effect?
Power of Attorney for Health Care
Sometimes known as a health care proxy or health care representative, a POA for health care designates someone to make medical decisions when a person is incapacitated.
An advance directive combines a living will and POA for health care into a single document.
As parents age and family caregivers become de facto “keepers of information” for them, there are medical issues that caregivers may need to discuss with doctors and other health care providers on behalf of their aging parents. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) restricts the release of protected health information (PHI) to people designated by a patient.
No matter how close you are to your parent, or how incapacitated they may be due to dementia, health care providers are not allowed to share PHI with anyone unless the patient has authorized them to do so in writing. Most doctor’s offices and hospitals have forms for patients to fill out. You can also print a HIPAA Authorization form, have your parent fill it out at home, and take it with you to the doctor’s office.
Even when your heart leads you to become the primary caregiver for your aging parents, it’s important to protect them–and yourself–by knowing what they want, what they expect from you, what you are willing to provide, and have it all in written form to prevent misunderstandings. Having an attorney familiar with your state’s laws prepare them can help make sure they are fair to all involved.