So you’re a care partner preparing for the long haul. Hopefully you, your loved one and the rest of the care-partner team are having such conversations early. If so, you’ll be more able to tackle the important — and tough — decisions that need to be made with clear heads, an unbiased lens and an understanding of the path ahead.
Who is the best fit to complete certain tasks and when? Who handles the finances when your loved one may no longer be able to? Who executes medical decisions when they can no longer speak for themselves? And most importantly, what does your elder want?
For good reason, you can’t walk into a doctor’s office and say, “I’m now in charge.” Nor is it legal (or ethical) to approach a bank or realtor and begin rattling off transactions for a loved one — even if they’re legitimate. There are legal documents caregivers must have to begin taking important actions.
Which Legal Documents Must Care Partners Have to Handle a Loved One’s Affairs?
I’ve broken these down without hierarchy. These legal documents are equally important for very distinct reasons.
Living Will (Advance Directive)
At a certain point in life, we all begin to know and understand what we prefer from medical care. And during the beautiful aging process, as we begin noticing health declines and envisioning later stages, we begin to embrace how we wish to die with dignity.
Do you wish for a do-not-resuscitate (DNR) order when you’re too ill to speak for yourself? Or do you wish to fight another day? Do you want strong pain medications? Or do you wish for natural or holistic treatment as a matter of personal preference or religious faith?
A living will gets this in writing — legally, unquestionably and with no ambiguity. It leaves no room for interpretation, for loved ones to question what an elder would want entering end-of-life care. It leaves no room for anyone to second-guess the validity or wisdom of a care decision.
Health Care Proxy
Along the same lines, the many different facets of medical care require decision-making — from doctor selection and physical therapy to prescription medication and the life-saving tactics mentioned above. In fact, a health care proxy may be named within the living will.
A health care proxy establishes an individual responsible for those decisions when an elder becomes incapacitated. Again it gets this in writing, so there’s no question who wields legal authority when it’s necessary. It’s also known as durable power of attorney for health care.
Power of Attorney
There are numerous legal matters beyond health care that require attention. Power of attorney prioritizes your elder’s final wishes and establishes an individual or individuals charged with executing legal decisions.
It’s important to have this in place, particularly when it comes to financial and property decisions. Power of attorney may also establish a living trust to manage finances, banking and real estate while the individual is still alive. But the power within power of attorney may broadly encompass health care and final wishes. If your loved one has not clearly (and legally) established a health care proxy, the one with power of attorney may execute end-of-life decisions or appoint a responsible choice.
Power of attorney gets it in writing, as well. It may be a difficult decision, but one has to be made when a person can no longer speak for themselves — legally, mentally and physically.
After a loved one’s death, there may be assets — big or small, material or sentimental — they wish to leave to family and friends. A will establishes who will receive what. It names an executor to see that final wishes are known and obeyed exactly. Sometimes assets are split evenly. Sometimes they’re determined by some other set of personal wishes known only by your elder.
I’ve rarely seen more animosity and squabbling amongst families than when a will was not established — or was established, but still unclear. Far too much, “Dad would’ve wanted me to have this!” and “Grandma would’ve wanted you to have that!” Again, a will gets it in writing to avoid unnecessary (and often ugly and costly) legal infighting later.
Your loved one and the entire care partner team can feel at ease knowing valuable assets and items of remembrance are going where they’re meant to be.
Legal Documents Caregivers Must Have: Get It In Writing
You see the theme here? Get it in writing! Get it done early, when everyone on the care-partner team has a cool head about the future. Get the legal stuff out of the way so everyone can enjoy the time left together as a family — whatever family may mean to you.
There’s no shame in seeking help. Caregiver Support and Resources, LLC has over 25 years of experience in patient advocacy, Medicaid planning (with asset protection) and life-care planning. We’re also happy to provide referrals to legal services to do the hard work of crafting your legal documents. Feel free to contact me for more information at firstname.lastname@example.org.
(Editor’s Note: Caregiver Support and Resources, LLC is not a law office. Maureen Rulison is not an attorney. The information contained in this blog is not to be construed as legal counsel or advice or substituted as such in any U.S. state, territory, locale or foreign state where it can be accessed. Rather, this blog is meant only to educate elders, care partners and families as to legal processes around life care planning.)