Page Reviewed / Updated – January 06, 2021

As the population ages, more caregivers are needed, and in fact, the majority of elderly care needs are taken care of by family members. The challenges of being a caregiver include needing help at times to navigate the many decisions they have to make. Some of these decisions are simple such as dietary needs, personal care or medication management. Still, financial help and legal advice may be needed at times.

Caregivers juggle many responsibilities for the elderly adult in their care. These include physical assistance, medical care, emotional support and legal matters. Although there are many home health care agencies to choose from, not all families can afford to hire them. Many caregivers are family members or friends who don’t get paid to take care of their elderly family members. Caregivers who offer their help often forego employment and encounter financial hardships.

If you are a caregiver or are contemplating being a caregiver for a loved one or family member, read the following article to learn about what caregivers need to know about legal services for the elderly.

Caregivers and Legal Services

Many caregivers are so busy caring for their elderly family member or friend they don’t realize the legal problems that may need to be addressed. Waiting until a crisis arises could mean making quick decisions without the proper information and support. It’s prudent to have a lawyer established and already on-board about a senior’s legal standing and needs, so everything is in place should a situation arise.

Some elderly adults may not have any arrangements for legal situations should they become unable to make decisions or handle their estate. Some documents should be completed and kept in a safe place, so as a caregiver, you’ll know what to do in the event this happens. These documents may include an estate plan, living will, power of attorney or a trust. Planning allows the caregiver to concentrate on caring for their loved one instead of dealing with lawyers and courts that are not familiar with their situation.

Common Legal Documents Needed For Elderly Caregivers

The downside to not having proper legal paperwork in place involves delays and extra stress during already stressful times. Below are the more common documents and why they are needed.

  • Power of Attorney: If an elderly person can no longer make decisions for themselves, a power of attorney grants the caregiver the legal right to make decisions for them. Situations needing to be handled include medical care decisions, financial decisions and living arrangements. A power of attorney is granted by an attorney and should be issued to the caretaker before an elderly person becomes incapacitated.
  • Living Will: A living will, or advanced health care directive, is a legal document that outlines the elderly person’s wishes in case they become incapacitated. This may include a medical procedure, or whether they want to be placed on life support and for how long, in the event they have no other medical options. This is a serious situation, and it’s vital that a living will is in place before anything happens. A living will allows the caretaker to know what their loved one desires, and it’s easier for them to decide what to do.
  • HIPAA Authorization: The Health Insurance Portability and Accountability Act (HIPAA) exists to enforce legal standards of privacy for a person’s health records. Medical professionals and institutions cannot share anyone’s health information except with authorized family members or caregivers. Each doctor’s office or health institution has HIPAA forms, and they are easy to complete.

Legal Issues That Caregivers May Face

Knowing the basics of legal issues caregivers may face helps avoid stress when things go awry. The caregiver may need advice and help at times. One area of help is with issues that arise from taking off from work.

The Family Medical Leave Act (FMLA) requires employers with more than 50 employees to allow up to 12 weeks of unpaid leave to take care of immediate family members (with certain caveats). FMLA ensures that when a caregiver returns to work, they maintain the same or an equivalent position. The amount of leave doesn’t have to be taken at the same time, and it can be helpful for caregivers who need to make other arrangements for their loved ones. Employers must grant the leave and hold the position.

When a caregiver suspects abuse of their loved one, elder law services can help with protections against elderly abuse and assists with possible legal guardianship. Some unscrupulous people and groups take advantage of seniors with financial scams, health care workers who may physically abuse elderly adults and other forms of elder abuse caretakers need to know how to recognize. If you need professional elder care legal advice, there are organizations such as the National Center on Elder Abuse (NCEA) and the National Family Caregiver Support Program (NFCSP).

If an elderly loved one becomes unable to care for themselves or make decisions while in the care of a family member and they have not completed a power of attorney, the caregiver can request guardianship. The caregiver first files a petition for guardianship with a local court and then works with the court to determine if guardianship is necessary. A hearing is held, and a judge decides to grant or deny guardianship.

If a caregiver finds they need legal advice themselves, there are options. Sometimes family members may accuse the primary caregiver of wrongdoing. In this case, Adult Protective Services (APS) may be called in. The caregiver who set up their loved one’s legal matters should already have a relationship with their lawyer so they can call on them in this sort of case. Caregivers should also keep journals, health care logs, appointment records and any other notes that illustrate their level of care.

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Finding Legal Assistance for Low-Income Seniors

Contacting a lawyer at the start when being a caregiver for an elderly adult can avoid stress and confusion later. If the elder’s income is below a certain threshold, they may be eligible to receive legal assistance through a local program. Many areas offer legal services pro bono or at a discount for older adults.

  • Legal Aid: The Legal Services Corporation (LSC) is a nonprofit group that ensures low-income people in the United States have access to free legal services. There are many legal aid organizations across the U.S.
  • Area Agency on Aging: Communities around the country have an Area Agency on Aging that helps the elderly and caregivers find low-cost and free legal services. Eldercare is a government agency that administrates this service.
  • This agency can answer basic legal questions over the phone. If it can’t offer an answer, it directs the caller to legal aid service for their location.
  • The American Bar Association: The American Bar Association provides listings for lawyers offering pro bono legal services to low-income applicants.

When caring for an older adult, part of the job includes legal matters that are handled best when preparation is taken by both the caregiver and their loved one.

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