Being a caregiver is a very rewarding job. However, the caregiving role faces a mix of legal, financial, and practical decision-making every day. In this blog post, you will find some information about the legal aspects to consider when becoming a caregiver.
Written legal documents that stipulate the wishes and decisions of the person you are taking care of are essential for caregivers. These documents can authorize another person to make health care and financial decisions, including plans for long-term care.
With time, elderly parents gradually lose capacity. Financial capacity and financial judgment often decline before other functions. To evaluate the level of capacity, it is important to get expert health advice. This will provide a broader picture to get started with these documents.
Legal authority comes in three ways:
- Power of attorney for financial decisions. Joint bank accounts are good for daily payments. However, they might not be good as a primary financing tool as they raise questions about intended ownership, gifting, misuse of funds, rights of creditors, and inheritance that can make a mess of family finances.
In this case, a power of attorney is the document to designate someone trustworthy to manage your beloved one’s financial affairs.
Power of attorney documents are tailored to individual needs and circumstances. When creating these documents, it is important to consider the powers to make gifts, change beneficiaries of insurance, or even sell one’s home.
Not having a power of attorney will represent a potential risk of financial exploitation.
- Power of attorney for healthcare decisions only. A close relative can be assigned as a surrogate decision-maker in the case of medical treatments. It is necessary to complete a Healthcare Power of Attorney by providing guidelines about how decisions should be made. At this point, it is important to evaluate the situation and have a thoughtful reflection and conversation about one’s values and priorities in life before granting power to somebody else.
- Guardianship or conservatorship. This is the legal assignation of a guardian to an elderly parent who is no longer able to take care of himself or herself. The guardian possesses certain duties and responsibilities to the person under their charge. This must be the last option to consider, only when good planning wasn’t done ahead of time.
Caregiver Rights Under FMLA
The Family and Medical Leave Act (FMLA) helps caregivers balance caregiving and employment responsibilities by entitling a family member (spouse, child, or parent) to up to 12 weeks of unpaid job-protected leave per year to care for their beloved ones.
It applies to most employers. However, some requisites need to be accomplished. It applies only to employers with more than 50 employees and requires them to have worked for more than a year.
It is important to review employee benefits at every company, as some employers provide family and medical leave, and in some cases, this would be paid.
To take FMLA leave, an employee must give a 30-day notice of the need to take leave, if possible, and may require:
- Medical certification supporting the need for leave due to serious health conditions affecting the employee or immediate family member.
- Second or third medical opinions (at the employer’s expense) and periodic recertification of the individual’s medical condition.
- Periodic reports during FMLA leave regarding the employee’s status.
Caregiving often requires a financial sacrifice. Receiving money for taking care of a beloved one can create serious problems with health benefits such as Medicaid, tax questions, and family conflict.
Before making any agreements, consult a lawyer who is experienced in elder law.
Abuse and Neglect protection
The legal documents mentioned in this post are aimed to protect individuals with diminished capacity, as they are a very vulnerable group.
It is the caregiver’s responsibility to be aware of the signs of abuse and exploitation and take action when red flags start to be present.
24/7 Nursing Care, Inc is a leading coordinator of nursing care and companion referral services for individuals who want to remain independent and outside of a nursing home setting. Give us a call today for your free initial in-home consultation at 786-518-3622 (Miami) or 954-949-1332 (Broward)
- American bar. (n.d.). American Bar Association. Retrieved June 10, 2022, from https://www.americanbar.org/content/dam/aba/administrative/law_aging/caregiving_ten_tips.pdf
- American Heart Association. (n.d.). American Heart Association. Retrieved June 10, 2022, from https://www.heart.org/-/media/files/health-topics/answers-by-heart/what-are-the-caregivers-rights.pdf?la=en
- Caregiver’s Rights. (n.d.). National Caregivers Library. Retrieved June 10, 2022, from http://www.caregiverslibrary.org/Caregivers-Resources/GRP-Caring-For-Yourself/HSGRP-Work-and-Caregiving/Caregivers-Rights-Article
- Intriago, J. (2022, March 31). Legal rights and responsibilities of a caregiver. SeniorsMatter. Retrieved June 10, 2022, from https://www.seniorsmatter.com/the-legal-rights-and-responsibilities-of-a-caregiver/2492329/#:%7E:text=Along%20with%20being%20responsible%20for,%2C%20physical%2C%20and%20financial%20health.
- Legal Issues of Caregiving. (2008, June 23). WebMD. Retrieved June 10, 2022, from https://www.webmd.com/healthy-aging/guide/legal-issues-caregiving