The topic of caregivers often comes up in Elder Law and Special Needs Planning contexts. Serving as a caregiver typically means you are charged with the responsibility of overseeing your loved one’s legal affairs. A recent article on AARP’s website addressed this issue and included a legal checklist for Caregivers. Here are the highlights.

1. Obtain Essential Legal and Estate Planning Documents

Your loved one should have the following important legal documents in place: a Will and/or Trust, Powers of Attorney for Health Care and Finances, and Advance Directives for end-of-life decision-making.  It is necessary to locate whatever documents are already in place, and if there are none (or the existing documents are outdated), to assist in getting new documents created to reflect your loved one’s wishes while she is still capable of making legal decisions on her own.

You may want to also consider setting up a Caregiver Agreement. This type of agreement is typically used when a family member serving as caregiver must give up other employment opportunities in order to care for a loved one. A Caregiver Agreement must be specific with respect to its scope, and the amount paid to a caregiver must be fair and reasonable.  A properly drafted Caregiver Agreement can also assist with certain benefit eligibility by reducing assets or available income of a loved one.  Note that payments to a caregiver are considered income to the caregiver that must be reported to the IRS.

2. Get the Family Involved

It is important to have the trusted members of the family participate in caregiving decisions whenever possible. You may even want to create an “action plan” which identifies who is responsible for what.  Moreover, while it is common for families to have “point persons,” it is best to have communication with and among the back-ups, whether they be legal back-ups under Powers of Attorney, or simply those who will step up to assist with personal matters when called on.  Even though an action plan that isn’t technically a “legal document,” it can help avoid confusion and possibly even legal disagreements.  Everyone wants what is best for your loved one.

3. Organize Your Loved One’s Important Papers

The legal estate planning documents mentioned above are critical, of course.  But you’ll want to find and organize a number of other documents, including: 

• Birth and Marriage Certificates
• Divorce Decrees (if applicable)
• Death Certificate of a Spouse or Parent
• Funeral / Burial Documentation (e.g. cemetery deeds, prepaid funeral contracts)
• Military Discharge Papers
• Life Insurance / Annuity Policies
• Pension Benefits
• Bank, Retirement, and Investment Account Statements

4. Pursue Opportunities for Financial Assistance

There are a number of programs and services available to elders and/or individuals with disabilities. These include Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), veterans benefits, the Supplemental Nutrition Assistance Program, Medicare, and Medicaid. You can use online tools such as the AARP Foundation’s Local Assistance Directory and the National Council on Aging’s Benefits Checkup to determine  programs at the local, state, and federal level for which your loved one may be eligible.

You should also take a look at your loved one’s retirement and insurance plans to see if any of them cover care (whether in-home or skilled nursing care), mental health services, physical therapy, or other forms of short-term assistance. A life insurance policy or annuity might even provide accelerated death benefits to help pay for long-term care.  In addition, planning opportunities exist for elders to obtain eligibility for Medicaid or VA pension benefits that can help cover the expense of long-term care.

Also, if you, as a caretaker, must take an extended absence from your job to care for a loved one, you may be eligible for up to 12 weeks of unpaid leave under the federal Family and Medical Leave Act. Some employers also offer paid family leave, and a number of states currently (or will soon) have laws mandating paid leave for caregivers.

5. Explore Tax Breaks

Your loved one may be able to receive federal tax deductions for health care expenses such as a wheelchair or hospital bed, remodeling or updating the home to make it more accessible, and hiring a short-term or part-time home health aide to provide respite for a primary caregiver. Be sure to save receipts for all medical expenses.

You can read the entire AARP article here:

https://www.aarp.org/caregiving/financial-legal/info-2020/caregivers-legal-checklist.html

If you’d like to talk to one of our attorneys about the legal aspects of being a Caregiver, please contact us. Let’s Talk.