Legal Preparation in Caregiving – Power of Attorney Documents

Planning for Peace of Mind

Planning for Peace of Mind to Assure Your Caregiving Needs are Met

When you are in the midst of dealing with all the physical aspects of caregiving, it’s easy to overlook the legal protections that should be put in place. This is the time when it becomes ever more important to understand the legal issues that can affect long term care. I recently sat down with attorney Rebecca Braun of Mobile Legal Services to talk about what all families should do to protect their elder’s assets and their long-term caregiving needs. She shared a wealth of knowledge which we’ll bring to you over the course of several posts on how to assure your loved one’s wishes are followed, both in their caregiving as well as with end of life choices.

The most important documents everyone should have are the Power of Attorney documents. As Braun points out, these effect you while you’re still alive. There are two types:  Medical Power of Attorney (also called “Patient Advocate Form”) and Durable Power of Attorney. Braun defines these on her website at MobileLegalServices.com. We will summarize them here:

Michigan Patient Advocate Designation

Michigan Patient Advocate Designation

Medical Power of Attorney (POA), often referred to as a Patient Advocate Form, designates an individual to make medical decisions for a patient when they are incapacitated and therefore unable to make the medical decisions on their own. This document typically includes a Living Will (a.k.a., end of life decisions, such as a Do Not Resuscitate Order). This is a form you could create on your own because it is more loosely governed, but you would be assured to have a more thorough document if you utilize an attorney.

This POA is often ignored because we think it is automatic for our spouse, children, or parents to make these decisions for us should we become incapacitated. But there are countless “what-ifs” that would make it prudent to prepare a Medical POA. Some situations include (but are not limited to): your spouse is unable to make the decisions due to their own incapacity, your children have differing views on how your treatment should be handled, you are single with no children, you are estranged from your family, you have a significant other who is not legally family and therefore not legally granted the right to make decisions. If you want this individual to make these decisions, this POA is necessary to give them that power.

Even if you do have family who could make these decisions, by preparing this document you will ensure that YOUR wishes are granted. For example, does your family know how you feel about extreme measures being taken in your care? Do they know if you want your organs donated? Or if you don’t want to be put on a respirator?

Also, if your caregiving involves a loved one’s ongoing medical treatment, you should also get HIPAA authorization so that healthcare providers can share medical information with you regarding the patient.

Durable Power of Attorney

Durable Power of Attorney

Durable Power of Attorney is an important document in estate planning. Though it can include healthcare, it generally applies to a “Principals” financial assets. It gives an “Agent” (the designated individual who will act on the “Principal’s” behave) the power to maintain your financial affairs should you become incapacitated. It helps you and your family avoid court involvement. It can apply only while the Principal is incapacitated, with power reverting to the Principal when they are able.

A Durable POA is the type of document where you need an attorney because it is complicated (generally 8 pages long) and subject to legal interpretation, which makes specific language significant to its effectiveness. Also, because everyone’s situation is different, an attorney can be sure to cover your specific needs. Even with a thorough Durable POA drafted by an attorney, some financial institutions may require additional verbiage before giving access to accounts. This is easily resolved because the “Agent” named on the durable POA can amend it if the “Principal” is incapacitated. Though this document is governed, there is no law that requires an institution to accept it; which is another reason to utilize an attorney.

You may think that these documents are not necessary for a spouse, however, if the spouse’s name is not on certain accounts, he/she will not have access to those accounts without the Power of Attorney document. For example, if your house is in both names and one spouse is incapacitated, the other spouse cannot sell the house without the POA.  And when considering accounts, remember that they include more than just a joint bank account. What about retirement accounts, pension funds, stocks, bonds, and other non-standard bank accounts. Are they joint? What about the mortgage and title to the home? Braun, however, points out that you need to keep in mind how joint accounts can affect your qualification for Medicaid, which may be needed for long term care of a spouse.

Also, be aware that a beneficiary on an account doesn’t have access to it while the person is alive, no matter what their condition. Therefore, it is important to have a Power of Attorney, especially if you are caregiving for your spouse or parent and need to use their funds for their care. Without the Power of Attorney documents, you may have to go to court to petition for guardianship in order to act on behalf of your loved one. This will cost extra time and money, which can affect you during a critical time of need.

When is a good time to get these documents drawn up? Now. We often think we can predict when a loved one will become incapacitated. But what if your loved one were in an accident? Having these documents in place can save you and them a lot of time, money, and headaches. At a minimum, the moment you realize your loved one needs caregiving help, get these documents drawn up. Remind your loved one that they apply ONLY if and when they become incapacitated and can’t make decisions on their own.

As we believe at DinerWear®, Luck is when Preparation Meets Opportunity. Just as we recommend you wear a Cravaat® dining scarf when you’re eating to avoid stains on your clothes, we also recommend you prepare and protect a loved one in the event they become incapacitated. Start with the Power of Attorney Documents to protect both you and your loved one against legal hassles that will cost time, money, and headaches.

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