The following is important information for both the chosen caregiver and the older adult. If you are the caregiver and your older adult is able to make decisions but isn’t in the right frame of mind to move forward, please consider their feelings. Help them get started with this difficult process and work with them so that their wishes for their finances, healthcare, and end of life needs are met legally. If you are the older adult reading this, don’t be too proud to ask your chosen caregiver to help you with this task.
Having the essential legal documents in place gives your caregiver the necessary legal rights to provide the best care for you, now and at the end of life.
That’s why it’s so important to find an expert lawyer that you trust to draw up the right documents.
Getting the legal stuff done now benefits everyone
One day, you won’t be able to manage your own legal matters and you will rely on your caregiver to act in your best interests.
Planning ahead and getting the legal stuff squared away before a crisis allows you and your family to stay in control of critical decisions.
Legal basics for caregivers
There’s a lot for your caregiver to manage, so we’ve narrowed the list to the 5 most important legal documents. This list doesn’t cover every situation and shouldn’t be considered legal advice, but it will help you cover the basics.
1. Power of attorney (POA)
- This allows you to authorize someone to make legal decisions if you are no longer competent.
- POA also covers authority to make financial decisions
2. Durable power of attorney (Durable POA) for health care (also known as a health care proxy)
- This allows you to authorize someone to make all decisions regarding health care, including choosing health care providers, medical treatment, and end-of-life decisions.
- A durable POA is one that stays in effect if you become unable to handle matters or make decisions on your own. As your chosen representative, your caregiver could pay your bills, manage your investments, or direct your medical care.
- Important: Do not use an ordinary or non-durable POA because that would automatically end if you become incapacitated. That’s the opposite of what you’d need.
3. Living will or advance directive
- This allows you to state, in advance, what kind of medical care you do and do not want to receive.
- This also covers what life-support procedures you would not like to have.
- This is used when you are not able to make your wishes known on your own.
4. Living trust
- This allows you (the grantor) to create a trust and appoint someone (a trustee) to manage the trust assets when you aren’t able to manage your finances.
- A person or a financial institution can be the trustee.
- Your will names an executor and beneficiaries.
- The executor is the person who will manage your estate at the time of death.
- Beneficiaries will receive the estate at the time of death.
What happens if you don’t plan ahead
If no planning is done before you become incapacitated, family members must ask a court to appoint a conservator or guardian.
A conservatorship can be difficult for families because almost every action or decision on behalf of you must be court supervised and approved.
How to get started with legal documents
For legal matters, hiring an elder law attorney is always recommended. It’s also smart to do your own research so you understand what’s happening.
In addition, you can usually seek advice on legal issues from social workers or clergy, free of charges.
What does an elder law attorney do?
Elder law is a specialized legal area focused on older adults and their adult children.
This legal specialty focuses on specific needs, including:
- Power of attorney and other important legal documents
- Long term care planning and paying for care
- Medicare and Medicaid planning
- Veterans benefits
- Estate planning
- Disability planning
- Elder abuse
2 ways an elder law attorney helps seniors and family caregivers
1. Plan for the future and protect assets
An elder law attorney has the expertise to make recommendations on how to plan for future care needs.
They often answer questions like:
- How can I qualify for Medicaid so it will pay for nursing home care?
- How do I protect mom’s house and assets, but still afford the care she needs?
- How do I make sure my wife will have money left after all my care expenses are paid?
- What to do if I need to become dad’s guardian or conservator?
- After I pass away, will Medicaid try to get money from my estate for the medical bills they paid and cause problems for my spouse or kids?
These are complicated questions and the answers will be different for each person.
A reputable elder law attorney helps protect your senior’s legal and financial situation and helps you figure out how to pay for the care they’ll need.
The fees are well worth it if they can save your family thousands of dollars and avoid future legal headaches.
2. Ensure all the legal documents are correct for your state
Laws are different (and very specific) for each state, so it’s important that the documents are prepared correctly.
A local elder law attorney can make sure that your older adult has completed all the important legal documents and that they’re compliant with state and local laws.
2 ways to find an elder law attorney
1. Get a referral from someone you know
Getting a referral from family or a friend is a great way to find a lawyer.
If they have a lawyer they’re happy with and would work with again, that’s a good sign.
It’s best to get a referral from someone whose legal needs were similar to yours. But even if you need an elder care lawyer and your cousin worked with an excellent civil attorney, that referral is still useful.
Also, good lawyers typically know other good lawyers and will probably be able to refer you to a colleague they respect.
Similarly, financial advisors, accountants, and fiduciaries (someone legally appointed to manage money) are professionals who often work with elder law attorneys.
If you know and trust one of these professionals, ask them for a referral.
2. Check the National Academy of of Elder Law Attorneys
The National Academy of of Elder Law Attorneys (NAELA) is the professional organization for attorneys who specialize in elder law and special needs planning.
Their website includes an attorney finder to help you find an elder law attorney in your area.
5 smart tips for hiring a good elder law attorney
After getting referrals, you’ll still need to choose an attorney.
Don’t make up your mind about hiring a lawyer until you’ve met them, discussed your older adult’s needs, and checked their credentials.
1. Meet for an initial consultation (possibly free)
An in-person meeting helps you get a feel for how they work and if their style works for you.
If you summarize your needs in advance, many lawyers will be willing to meet for 15 to 30 minutes at no charge. If there is a fee for a consultation, find out how much it will be.
If you can, meet with a few lawyers and present the same situation to each. Then, you can compare their responses.
That helps you confirm that the overall approach is legitimate and prompts you to ask questions about any differences in advice.
2. Find out how much experience they’ve had with issues similar to yours
Experience comes with years in practice and with how many of those types of situations they’ve dealt with.
So, it’s a good idea to look for a lawyer with experience handling matters similar to your older adult’s.
For example, if they need a Power of Attorney, long term care planning, and estate planning, ask prospective attorneys to describe their experience with those matters.
3. Evaluate their customer service
Working with someone who is professional and responsive is important.
After speaking with a lawyer, ask yourself:
- Are they polite and professional?
- Do they return calls or emails in a timely manner?
- Do they take time to explain things to make sure you have a good understanding?
- Do they follow through with things they’ve said they’ll do?
4. Take plenty of notes
To help you remember what each lawyer said and how you felt about them, be sure to take notes during and after each meeting.
Later, review your notes to help you make the final decision.
5. Check their credentials
Before hiring any lawyer, check the State Bar Association website for your state.
Look up the attorney’s name or Bar number to make sure they’re actively licensed to practice law in your state. This will also show if they’ve ever been publicly disciplined.
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