Essential documents to formalize caregiving arrangements

By Frederick M. Misilo Jr., Esq.

When someone you care about needs extra help, providing it may seem like a simple thing to do. It’s easy enough to take on a few tasks your spouse, parent or other loved one is having difficulty getting done.

From a legal perspective, caregivers can provide that type of informal assistance—reviewing the mail, paying a few bills or arranging for home maintenance and repairs. It’s very common to take on these tasks, especially when you’re just becoming a caregiver.

It’s also very common to assume that an informal arrangement will be enough. No one wants to imagine being mentally or physically unable to make health care and financial decisions independently. But when it comes to dealing with government agencies, banks and insurance companies, you need to plan for that possibility. A few essential legal documents can make a dramatic difference for you, for your loved one and for the whole family.

How you can help protect your loved one

Although this can be a difficult topic to discuss, I recommend considering the following steps to protect your loved one, as well as family members and financial assets involved in the situation.

1. Find out if your loved one has a durable power of attorney.

With a durable power of attorney, your loved one names an agent to act on his or her behalf for any financial matter. (Within the document, the agent is called an “attorney in fact.”) The durable nature of the document means that the agent retains this power, even if your loved one becomes incapacitated.

If your loved one named you as the agent, consider whether you still feel willing and able to take on this responsibility. If not, be honest with your loved one about your concerns. Check to see if an alternate has been included in the document, and make sure that person is aware of—and up to—the role.

If there is no durable power of attorney, set one up.

If the person you’re caring for has not yet created a durable power of attorney and has the capacity to make decisions independently, taking this step now is incredibly important to managing their assets and legal interests. The agent should be a trusted, responsible person who is capable of dealing with financial institutions, applying for public benefits and signing checks to pay bills on your loved one’s behalf.

The agent may also make decisions such as selling property and taking funds out of accounts. Even a seemingly mundane task like changing the person’s mailing address can only be done if you demonstrate you have the legal authority to do so.

The durable power of attorney is a powerful document. Although you can find forms on the internet to create one on your own, I strongly advise having the document drawn up by an attorney who is licensed in the state you live in and the state your loved one lives in. That ensures you don’t end up using a generic form that leaves out the unique requirements of your particular state.

2. Ask if your loved one has a health care proxy. If not, help set one up.

The health care proxy, a widely used, standard form, enables your loved one to name a health care agent who would make medical decisions, in the event that your loved one becomes unable to make or communicate his or her health care decisions. Ideally, your loved one would have conversations with the health care agent so there is a clear understanding between them of what type of care your loved one wants. (The personal wishes statement described below gives them an opportunity to put some of the specifics in writing. It’s particularly important in the case of advanced medical care, when the underlying medical condition would cause death even if life-sustaining treatment were used.)

The health care agent would be able to deal with situations such as hospital or nursing home admissions and discharges, transfers between facilities or back home, and the hiring or discharging of health care and home care providers.

3. Find out if your loved one has signed a HIPAA release.

A Health Insurance Portability and Accountability Act (HIPAA) Release grants a third party to have access to protected health information. If your loved one hasn’t signed a separate HIPAA release, health care providers can’t share medical information with you. If there isn’t a HIPAA release contained in a health care proxy, the health care agent will not be allowed access to medical information needed to make a decision.

4. Help create a personal wishes statement.

A personal wishes document is not legally required, but it’s a good idea. It’s like a letter of intent, designed to guide the person named as health care agent through the difficult health care decisions that need to be made. It’s especially important for someone for whom life-sustaining treatment will only prolong the dying process.

The personal wishes document enables your loved one to inform the health care agent of a range of their preferences—from a desire for spiritual support in a specific faith tradition to not wanting to have a breathing or feeding tube. Without a personal wishes document, an agent may not know what the person would want.

Unlike a personal wishes document, a Medical Orders for Life-Sustaining Treatment (MOLST) form must be filled out in collaboration with a physician and details the treatments a person does and does not want to receive. A MOLST form is most often used to let emergency medical technicians and other first responders know whether the person wants life-sustaining treatment.

What to do if your loved one isn’t competent and hasn’t planned

If your loved one is no longer able to make decisions independently—and doesn’t have durable power of attorney and health care proxy documentation in place—it becomes more difficult. In that situation, you have to petition in probate court for:

• Guardianship to manage health care and personal issues
• Conservatorship to get control over the property and assets

To do this, you need clinical documentation from a health care provider to verify that the person is incompetent to manage their health and financial affairs. You also need to show the court that you’re qualified to take on these responsibilities on the person’s behalf.

If a guardianship is set up, the court requires the guardian to provide a care plan report within 60 days of being appointed and annually thereafter.

As the conservator, you must do an initial inventory of assets within 90 days and provide an annual accounting of all financial transactions. The court may also require you to provide a financial plan annually. If you resign your position as conservator, or when your loved one dies, you then need to provide a final account to the court.

Don’t neglect your own planning

You have a lot on your mind when you’re providing care for someone else and helping him or her plan for the future, but I strongly encourage you to do your own planning. If you’ve already made plans, I recommend reviewing them every three to five years and every two to three years after age 50.

Sometimes couples with young children name their own parents or siblings to serve as agents for their health care proxy and durable power of attorney—and never update it in the decades that follow. Too often a spouse passes away and, when the surviving spouse begins to fail, the family discovers that the power of attorney is an older relative or friend who has died or is living but not competent.

You can avoid these situations by creating and regularly reviewing these documents. I believe everyone should have them, because, to put it simply, you never know what’s going to happen—and it’s always better to be as prepared as you can be.

Frederick M. Misilo Jr. is Chair of the Trust and Estate Department at Fletcher Tilton, a law firm in Worcester, Massachusetts. His areas of expertise include elder law, special needs planning, estate planning, estate and trust administration, guardianship, and adult service advocacy.