9 Legal Tips for Family Caregivers

Published on June 27, 2024

1. Understand the healthcare power of attorney (POA)

A healthcare power of attorney is an important legal document that allows you to make decisions on behalf of your loved one or a person for whom you provide care if they become unable to communicate their wishes. Ensure it’s properly drafted, signed and notarized, and keep it updated. Seek legal help to avoid any ambiguities that could lead to disputes. It’s important to note that healthcare power of attorney is separate from a financial power of attorney, which grants someone access over another person’s finances.

2. Become familiar with HIPAA regulations

The Health Insurance Portability and Accountability Act (HIPAA) protects a person’s medical information. Unless you are named the healthcare power of attorney, you may not have the necessary authorizations to access their medical records and communicate with healthcare providers without breaching privacy laws.

3. Follow a living will or advance directive

These documents outline a person’s wishes regarding medical treatment if they become incapacitated. Having a clear, legally binding directive can prevent family conflicts and ensure their wishes are honored.

4. Manage finances legally / financial power of attorney

Financial power of attorney grants you the ability to manage someone else’s finance. If you have been granted financial power of attorney, maintain meticulous records. Use separate bank accounts for their expenses, keep receipts, and avoid commingling funds. Transparency is key. Mismanagement in this area of caregiving leaves you vulnerable to accusations of financial exploitation.

5. Know your employment rights

If you are balancing caregiving with employment, familiarize yourself with the Family and Medical Leave Act (FMLA), which may entitle you to unpaid, job-protected leave. Some states will have additional protections for family caregivers. While there is no federal law that explicitly prohibits discrimination against family caregivers, more than 250 states, cities, and counties have laws that do so by making employment discrimination based on family responsibilities or caregiver status illegal. Check your state laws for additional protections and speak to your employer about flexible working arrangements.

Conversely, if you are being paid to provide care (whether through private pay or government program) make sure you understand the applicable income taxes. Will you be an independent contractor or employee? How a caregiver is classified will affect how the federal income tax, Social Security, and Medicare taxes are paid, and how caregivers file their income tax returns. All parties involved should be clear about the legal implications of their chosen arrangement.

6. Stay informed about Medicaid and Medicare

Medicaid and Medicare have specific rules and benefits that can significantly impact caregiving. Understand eligibility requirements, coverage details, and application processes. Mistakes or misunderstandings can lead to denied claims or loss of benefits.

7. Be cautious with estate planning

Don’t hesitate to seek a consultation with an elder law attorney or care manager for any uncertainties or complex issues. Elder law attorneys specialize in the unique legal challenges faced by family caregivers and can provide invaluable guidance to protect your loved one and yourself. And care managers are professionals who can help families and caregivers manage the many legal, medical, social, and financial aspects of caregiving.

8. Maintain transparency

Elder abuse allegations can arise from misunderstandings or family tensions. Protect yourself by keeping thorough records of caregiving activities, financial transactions, and communications with other family members. Transparency is your best defense.

9. Understand guardianship and conservatorship

If your loved one is no longer able to make decisions because of cognitive decline or other impairment, you may need to seek guardianship or conservatorship. These legal processes can be complex and contentious, so consult an attorney to navigate them properly.

Being proactive and informed can help you avoid legal pitfalls and ensure your caregiving journey is as smooth as possible. By following these tips and seeking professional guidance when necessary, you can provide the best care for your loved one while protecting yourself from legal complications.

Source: IlluminAge AgeWise