Legal Issues
Important Legal Documents
The following is a basic introduction to the important legal documents involved in caring for an elder, but it is NOT intended to substitute for professional legal advice.
Durable Power of Attorney
DPOA is a document that grants a person or persons ("Attorney-in-fact") the legal powers to perform on behalf of the elder ("Grantor") certain acts and functions specifically outlined in the document. This power is effective immediately and continues even if the grantor becomes disabled or incompetent. The powers usually granted include real estate, banking and financial transactions, personal and family maintenance, government benefits, estate trust and beneficiary transactions.
The choice of the attorney-in-fact should be carefully considered because the responsibilities involved may require significant time and work. Professional advice should be used for the preparation of the DPOA, since the documents must meet certain legal requirements.
Advance Directives
Advance directives are written instructions regarding an individual's medical care preferences. The forms vary from state to state, but in general, advance directives can include a Living Will, Health Care Power of Attorney or Health Care Proxy, and Do Not Resuscitate or Do Not Intubate Order (DNR or DNI). You do not necessarily need a lawyer to create these.
All adults, young or old—and especially you and the elder in your care—should have advance directives to deal with an accident or illness that would make it impossible to communicate choices concerning treatment. Contact the following organizations for more information:
- The American Bar Association Commission on Law and Aging, 202-662-8690, offers free online publications, including "Consumer's Tool Kit for Health Care Advance Planning" and "Ten Legal Myths about Advance Directives." Click on "Online Publications for Consumers" or order copies by phone.
- The Medline Plus Web site, a service of the National Library of Medicine and the National Institutes of Health, offers various resources on creating advance directives.
A written advance directive, called a living will, is a valuable way to clarify an elder's choices and wishes. It is used if an elder becomes terminally ill, incapacitated, or unable to communicate or make decisions. Some states do not recognize a living will as binding on medical personnel. However, documents used to prepare a living will provide information that can convey the elder's intent, and help a health care agent carry out the elder's wishes.
Health Care Power of Attorney/Health Care Proxy
One of the most important steps in being able to implement an elder's wishes is appointing a health care agent or proxy. To do this, you must draw up a Health Care Power of Attorney (POA) or a Health Care Proxy, a legal document that names a health care agent. The health care agent or proxy needs to be able to talk openly and often with the elder, so that he or she understands the elder's wishes and values and can make treatment decisions (when the elder cannot) without having to argue with family members or medical staff. The agent should be someone the elder trusts and someone who can communicate easily with family, friends, and health care professionals. The health care agent will not only have decision-making powers, but also have full access to confidential medical records.
A health care agent does not have to be a family member. Any competent adult (18 or older) may serve as a health care agent, except someone who works at a facility where the elder is a patient at the time the agent is appointed. The health care agent can be different from the person who handles financial matters. Once a health care agent has been chosen, let your family and close friends of the elder know so that everyone is clear about who to contact in the case of a medical emergency.
The health care proxy takes effect only if the family, hospital, or nursing home physician has determined in writing that the elder lacks the capacity to make or communicate health care decisions. The document should also contain specific language dealing with HIPAA, the federal law that deals with patient privacy. You should know where this document is and bring it with you if the elder in your care is hospitalized or in the emergency room.
If the elder in your care has moved since documents were drawn up, travels frequently, or lives full-time or part-time in another state, find out what that state requires to ensure that the documents you have are legally binding. If not, you may need additional legal documents.
Do Not Resuscitate/ Do Not Intubate (DNR/DNI) Order
If an elder does not want to have cardiopulmonary resuscitation (CPR) or have a breathing tube inserted, ask the doctor to prepare a "Comfort Care" or "Do Not Resuscitate Order" (DNR), and/or "Do Not Intubate Order" (DNI), sign it, and make it part of the elder's medical record. It is also essential to keep a DNR Order visible and accessible at all times so that emergency medical personnel, such as EMTs and paramedics, can provide care and transport without defibrillation and/or intubation. Some families keep the document on the refrigerator door or in a clearly marked folder.
Obtaining Legal Documents
You do not need a lawyer to complete an advance directive, living will, or heath care proxy, although you may find an attorney's advice helpful. (You do need a lawyer to complete the Durable Power of Attorney. To find an attorney, see Finding Legal Services.) You can also call the Office for the Aging for the attorney schedule in Niagara County.
Wills & Trusts
It is essential to have an up-to-date will and/or trust that designates financial, estate, and legal control and distribution. You and/or the elder may have few assets, but even with simple estates it is generally advisable to have an attorney create a document that will protect the elder’s wishes about her or his estate.
Family caregivers are often called on to manage a loved - one's finances or medical issues. One of the most important things you can do once you've taken on this role is to get organized and make sure you have acess to their necessary papers. To help with this the Family Caregiver Alliance National Center on Caregiving has developed a check list. Where to Find My Important Papers