Caring for the elderly isn’t just a physical and emotional commitment. It can also be a legal commitment—one that includes a variety of important legal documents that must be put in place to protect the rights of both caregiver and care receiver.
With the many situations and documents out there, it can be challenging to navigate the legal side of things. Learn about the most important legal documents you’ll need when caring for the elderly, as well as some important considerations and tips on things like timelines and when paperwork may need to be updated.
Key legal documents related to caregiving
Every caregiving situation is unique and will require its own planning, but you’ll likely encounter many of these common and important documents in your caregiving journey:
- Power of attorney: This is a voluntary authorization of authority to another person and requires that the person receiving care be of sound mind and have the ability to assign such an authorization. The person named with the power of attorney is able to act on another person’s behalf in legal, financial and/or personal matters, and the terms will vary depending on the situation.
- Durable power of attorney: In this type of power of attorney document, the caregiver is granted the authority to make health care decisions or decisions in the case of the recipient becoming incapacitated.
- Advance health care directive: Also known as a living will, this is a voluntary legal document that details the specific actions that someone would like to be taken for their health in the event that they should become unable to make such decisions for themselves due to incapacity. The caregiver has the right to carry out these specified actions.
- Legal conservatorship: Unlike the two previous directives, which are voluntary, a legal conservatorship is an involuntary caregiving arrangement, typically used in cases where the person requiring assistance has lost the ability to make their own decisions or assign authority.
- HIPAA release: This release allows a caregiver access to the person’s health records.
- Revocable living trust: This legal document allows a caregiver or assigned persons to gain control over an estate so they can transfer assets to beneficiaries. The property and to whom it is intended will all be detailed on the trust. One of the benefits is that it allows an estate to avoid probate at the time of death.
- Will: This is a legal document detailing who will receive assets and personal property upon an individual’s passing. Creating a will that details an individual’s wishes can help avoid disputes over assets and personal property after the person’s death. See our estate planning by state tool for detailed information about making a will in your state.
Setting a timeline for needed legal documentation
While drafting these actual documents can potentially be done quite quickly, it often takes a little bit longer to make sure that they are legally binding. For instance, many states require that directives be notarized to be recognized in the eyes of the law. In addition, for those who don’t feel capable or inclined to draft their own legal documents, it may be necessary to hire an attorney. Turn times and fees can vary quite widely depending on the situation at hand.
In some cases – such as setting up a legal conservatorship – the process will require a little more time and planning because you’ll need to go through several steps to complete the process. For example, even an emergency conservatorship takes up to five days to process.
Which legal documents may need to be updated?
Caregiving situations change over time. Depending on the advancing situation, any and/or all of the documents discussed above might require tweaking.
For instance, a power of attorney agreement may come to an end if the person receiving care becomes incapacitated. If the person’s health seems to be declining or they have a big surgery coming up, it may be worth updating the document to make it a durable power of attorney. This would involve updating the language to grant the agent authority in the case of incapacitation. In that case, the agreement might remain effective until the person in question dies or revokes the power.
DIY options for legal documents
For those working on a budget or who aren’t inclined to involve lawyers, a variety of
no-cost or low-cost resources are available for generating many of the helpful legal documents. However, be sure to read the fine print before signing up with a service. It’s possible they may offer a free document generator but then charge to actually access the finalized document.
Regardless of whom you choose, remember the document in question may require the presence of a notary to be considered legally binding. Be sure to check the regulations in your state to be sure that your document fits the legal requirements.
Safekeeping legal documents
It’s common sense: Make sure all legal documents regarding care for the elderly are kept in a safe place. However, it’s important to make sure at least one trusted individual knows where the documents are and has access to them.
It’s an all-too-common scenario to place important documents like a will in a safe deposit box. But then in the case of an emergency, it’s difficult for others to access them. Make sure to keep a copy that’s accessible or instructions for how to access the documents in their safe spot.
Be a legal eagle
Dot your i’s and cross your t’s! A little advance planning can go a long way when it comes to managing legal documents related to senior caregiving.
By taking the time to familiarize yourself with common legal documents, what they involve, and what further actions may be required, you’ll be able to take some of the stress out of the process so you can focus on the already significant task of caregiving.