The Pitfalls of Estate Planning - Sweeping the Minefield of Long-distance Caregiving

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When the time comes for long-term care, most elders prefer to stay in their present location, even if staying there means being at a distance from their primary caregiver.

Although the distance creates many hazards, steps can be taken, whether you are the elder or the caregiver, to avoid the minefield of legal and financial issues that await you.

Many times, caregiving is interrupted when the elder has not established an effective estate plan. The most common legal issue confronting caregivers is lack of authority to handle financial and medical decisions if the elder becomes incapacitated or incompetent. With proper estate-planning documents in place, the authority to make financial and medical decisions can be granted to the person that the elder chooses. Thus, while the elder is able to express his or her wishes, the caregiver should discuss with them the need to legally establish someone to handle financial and medical matters in the event of incapacity. The caregiver should also be sure to discuss end-of-life decisions with the elder and ensure that the elder's wishes are memorialized in writing within the proper legal document.

Generally, the estate plan will include a will as well as documents that protect the elder in the event that he or she becomes incapacitated. In Massachusetts, in addition to a will, the elder should execute a durable power of attorney relative to financial decisions and a health care proxy relative to health care decisions.

In each document, the elder would name someone to make his or her financial and/or medical decisions if the time came that the elder no longer could make them. Also, the health care proxy typically contains language guiding the caregiver with respect to end-of-life decisions for the elder. Together, a durable power of attorney and health care proxy protect the elder from guardianship, which is the time consuming, expensive, and very public process of having a decision-maker appointed for the elder by the court.

As the law varies from state to state, another common legal pitfall appears when the estate planning documents that have been established are not valid. This pitfall usually arises in one of two ways: the documents were prepared in the caregiver's state and are not valid in the elder's state, or the documents were prepared in the elder's state and the elder moves to the caregiver's state as the elder's health declines, and the documents are not recognized in the caregiver's state.

To avoid the pitfall of having unusable estate-planning documents, it would be best to hire an elder-law attorney practicing in the both the elder's and the caregiver's state so that you can be sure the advice you receive will pertain to the law of each state and that any necessary state-specific provisions will be incorporated into the estate-plan documents. Otherwise, it is possible that the elder could lose the protection of the documents, especially if the elder moves after losing his or her capacity to execute new documents.

Another area loaded with potential problems for the long distance caregiver is...

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by: Gina M. Barry, Esq.

Healthcare News
January 2009

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