At some point, most everyone will find themselves in the role of caregiver, to some degree, to someone in their family or maybe even a friend. While the actual physical care is top priority, there also exists a very important reality that will have to be addressed: the legal and financial considerations. There are no shortage of questions our estate planning lawyers hear on a daily basis and while it’s virtually impossible to provide specifics in a column, what we can try to do is put the foundation into place so that our clients are armed with necessary information.
Most often, estate and financial planners in New York use both the durable power of attorney and the health care proxy. Before those legal documents are prepared, there are always many questions that require answers.
For instance, we counsel our clients to come together as a family when it becomes clear that Mom or Dad will need much more care than they might have anticipated. Ideally, decisions such as who makes any medical and financial calls will already be made. Once those issues have been addressed, consulting with an elder care lawyer is the next step. Caregivers and family members should put into place all of the legal documents they’re aware of prior to that first consultation.
Durable Power of Attorney
These documents allow anyone to name someone they trust to make any necessary decisions from a financial and legal perspective. While it’s not mandatory for a family member to fill this role, it’s only natural that we would choose someone close to us. There may also be more than one person you may wish to choose. One reason elder care lawyers encourage a durable power of attorney is that it remains in place, even if the person becomes incapacitated in any way and is unable to communicate. Make no mistake: this is perhaps one of the strongest documents in the collective financial planning process. It’s also a wise decision for dementia or Alzheimer’s patients, provided their wishes can be memorialized while they’re still able to communicate them.
Health Care Proxy
Meanwhile, family members might consider a health care proxy. The purpose of this is to allow caregivers to make medical choices on behalf of their loved one. Those decisions might include various medical treatments, end of life decisions and health care providers.
These are never easy topics to discuss, but when you have them ahead of time, before you’re facing other difficult family decisions, you can eliminate some of that stress. Ideally, the family member you’re discussing will have had a role in these decisions in the past. Consider nutritional decisions, such as feeding tubes and artificial hydration as these are often the most emotional decisions.
Also, your estate planning lawyer should discuss the HIPAA waiver. This is the federal law that covers medical privacy. It allows doctors, pharmacists and other medical professionals to release medical records to third parties. The U.S. Health and Human Services oversees and ensures compliance of these documents. They’re important to have, so be sure to at least discuss the options with your loved one’s elder law attorney.
The Power of the Living Will
Finally, don’t underestimate the value of the living will. This is one of the most important documents to have as it provides legally binding wishes about end of life measures made by the patient. It ensures the decision making process remains with the patient when he or she was able to declare them. Note that New York does not have a statute authorizing living wills and they’re typically recognized under case law.