Important Legal Documents for Caregivers

Growing older is not the blessing some expected, nor is it the curse others feared. It likely falls somewhere in the middle. But, according to a 2009 Pew Research Center report, older adults do report experiencing fewer of the benefits of aging than they expected, such as spending more time with family members, traveling more for pleasure, spending more time with hobbies, volunteering, or starting a subsequent and more enjoyable career.

Without a doubt, there are burdens that come with old age. According to the same Pew Research Center report, about 25% of adults aged 65 and older report experiencing memory loss. About 20% of them report a serious illness, and that they are not sexually active, and that they often feel sad or depressed. About 16% report they are lonely or have trouble paying bills. About 15% cannot drive a vehicle while 10% say they feel they are no longer needed by others or they feel they are a burden to others. Still others lack the ability to communicate their wishes to caregivers and others.

Because we all hope to become older adults one day and experience the various issues previously described, it is important to discuss some important legal documents older adults should obtain now. Planning ahead allows older adults and their family members to remain in control of critical decisions. Without such planning, lawyers and courts are often required to address emergency estate planning topics at a time when emotions run hot and time is valuable.

Caregivers should be part of the considerations as well. Eventually many people will be caregivers. Over 53 million people were providing unpaid care in the United States in 2020, according to reports published by the American Association of Retired Persons (AARP). Many of those caregivers never imagined themselves in that role but it just happened. For some, it was an accident or a serious illness experienced by their spouse or loved one. For others, it was a gradual decline in health by someone in their lives. For still others, that person who requires caregiving is a life partner, a parent or friend.

Caregivers provide the obvious valuable services of time, medical attention, and caring to older adults. Those services may be greatly enhanced through the use of five important legal documents that include the following: (1) a Durable Power of Attorney for Finances; (2) a Durable Power of Attorney for Healthcare; (3) a Living Will or Advance Healthcare Directive; (4) a HIPAA Release Form; and (5) a Last Will & Testament.

1. Durable Power of Attorney (POA) for Finances. This document allows an older adult to authorize a caregiver to make financial decisions – perhaps at a time when the older adult is considered incapacitated. 2. Durable POA for Healthcare (a/k/a health care proxy). This document allows an older adult to authorize a caregiver to make decisions regarding healthcare, including choosing health care providers and medical treatment when the older adult is unable to make decisions. Some older adults can even choose to authorize a caregiver to make end-of-life decisions using this document, although most seasoned attorneys prefer a Living Will or Advance Healthcare Directive for end-of-life decisions. 3. Living Will or Advance Healthcare Directive. This legal document allows an older adult to state, in advance, what kind of medical care they do and do not want to receive near the end of their life, and the instructions for medical care normally go into effect only if the older adult cannot communicate the wishes.  4. HIPAA Release Form. The HIPAA Privacy Rule (45 CFR §164.500-534) became effective on April 14, 2001. The primary purpose of the HIPAA Privacy Rule is to ensure the privacy of patients is protected while allowing health data to flow freely between authorized individuals such as caregivers. Upon presentation of a HIPAA Release Form, a HIPAA covered entity such as a healthcare provider may disclose individually identifiable protected health information without an individual’s further consent. 5. Last Will & Testament. This document allows an older adult to designate a Personal Representative and beneficiaries. The Personal Representative is the person who will serve as liaison between the decedent’s estate and the court during the administration of property stuck in the name of the decedent. An older adult may choose to designate their caregiver to serve as Personal Representative and they can designate a deserving caregiver as a beneficiary to the Will.

Without these five essential estate planning documents, caregivers, family members or friends will likely resort to requesting a guardianship or conservatorship from a local court with jurisdiction over the older adult. A guardianship is a public and uncomfortable process in that the petitioner must allege the older adult is incapacitated. That process requires the petitioner to meet its burden of proof through an evaluation or statement of previous evaluation under oath by the older adult’s treating physician. A conservatorship is similarly public and uncomfortable in that every action or decision by a conservator on behalf of the older adult must be court supervised and approved.

The importance of having professionally drafted estate planning documents cannot be overstated. A Durable Power of Attorney, and Durable Power of Attorney for Healthcare, and HIPAA Release Form, and Last Will and Testament may be the most important legal documents that an older adult will ever encounter. It is not enough for older adults to simply tell their caregiver, relatives, and friends how they would like decisions to be made.  All of those instructions must be included in properly executed estate planning documents so that they meet all the requirements of Missouri law.

For legal matters such as those described herein, hiring a seasoned elder law attorney is always recommended. Once an estate plan is in place, the documents should be reviewed on a regular basis, at least ever 3-5 years, and in particular, upon the occurrence of life changing events such as divorce, separation, marriage, birth of a child, a substantial increase in estate value, death, or disability. If any changes are required, an elder law attorney can walk an older adult through the process of updating the documents.

Our law office oversees all aspects of estate planning, and we look forward to answering any questions that you may have. Please do not hesitate to call or email us at your convenience. Our goal is to make your estate planning an easy and stress-free process for everyone who walks through our doors.

Todd Miller is a monthly contributor and regularly writes and speaks on various legal topics including bankruptcy, estate planning, probate, and elder law.  He opened the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006.  He has been awarded the Substantial Contributor Attorney Award by the Missouri Bar and ranked as one of the “Top Attorneys in Missouri” by The Legal Network.  Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, Instagram, and Twitter.