A Caregiver's Guide To Legal Documents For Aging Parents

Explore vital legal documents for caring for older adults including Powers of Attorney, advance directives and wills, preparing for peace of mind in later stages of life.
Published on
June 15, 2022
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Caring for an aging loved one is challenging enough without legal obstacles. This article explores a series of legal documents you should be aware of as a caregiver. Though, only some need to have all these documents.

What is advanced care planning?

Advance care planning is about considering end-of-life decisions and communicating those preferences to family and healthcare providers in advance through a series of documents.

How do I have a conversation about advanced care planning?

Conversations around advanced care planning can be delicate depending on your loved one's views of aging and death. It can be even more complicated if your loved one is experiencing any changes in cognition at the time of the conversation. Luckily, tools are available to help guide you in these conversations.

  • The Five Wishes: The Five Wishes is a non-state-specific guidebook to getting advanced care planning documentation in order. Not only does it include the documents needed for 42 states, but it simplifies the conversation into 5 basic wishes: 1) the person making decisions, 2) the kind of medical care the person may want, 3) how comfortable they want to be, 4) how they want to be treated by others, and 5) additional information they want people to know.
  • The Conversation Project: Another guide to end-of-life conversations is The Conversation Project. The Conversation Project does not include legal documents but offers a structured way to have "the conversation." They even have a guide specifically for caregivers of people living with Alzheimer's and other forms of dementia to make the conversation easier to digest. While this is a guidebook and not a legal document, it can be helpful in situations where discussions or documentation still need to be completed before the onset of memory loss.

Suppose your loved one struggles to engage in the conversation or is apprehensive. In that case, it can be helpful to frame it as an essential task everyone needs to do. Introduce it as something the whole family does, regardless of age or health condition. Along with this, Givers offers a personalized care coach who can help you bring this conversation to light with your loved one. 

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Important Legal Documents For Elderly Parents

Durable Power of Attorney for Asset Management (POA)

A Power of Attorney is a legal document letting a person, usually elderly, assign someone else to act for them in financial matters. These financial tasks might include selling a home, selling stocks, writing and depositing checks, and opening and closing accounts. Jointly held assets or assets held in trusts are not impacted by a power of attorney. Also, a Durable Power of Attorney for Asset Management cannot be used to make health care decisions.

Power of Attorney can become effective immediately or triggered by a specific event (called Springing Durable Power of Attorney or Conditional Power of Attorney). For instance, a lack of competency determined by a doctor's opinion could trigger POA. Once effective, the Power of Attorney is effective until death unless the person regains basic competency and can take back the Power of Attorney.

For Veterans, someone else can't manage their federal benefit checks through a regular Durable Power of Attorney form. Instead, a person can designate a VA fiduciary through the VA to manage their VA benefits. 

For those who receive Social Security, a regular Durable Power of Attorney form does not let someone else manage their SSI checks. Instead, another person can control someone else's benefits through Social Security's Representative Payment Program.

Who and when to create a Power of Attorney?

Some advice says that every aging person has a Power of Attorney. In contrast, some suggest that a financial POA is only needed if the senior person has financial assets. 

There is no time too early to create a Power of Attorney. It is only too late if the aging person already lacks basic competency, defined as the ability to understand that you are entitling another person to handle your legal and financial interests.

A chronic or terminal illness like Alzheimer's does not prevent you from creating a POA. However, it does increase the urgency as basic competency will eventually be lost.

How much does a POA cost?

You do not need legal assistance to create a Power of Attorney, and you can find a free POA form online. The document must be notarized in most states, requiring a notary fee (usually less than $50).

If you work with a legal professional, fees might range between $250 and $500. An attorney may help determine why a person may or may not want to include specific assets in the POT. State bar associations can typically make referrals to attorneys or organizations that provide free POA services.

Medical Power of Attorney (MPOA)

A Medical Power of Attorney is sometimes called a Health Care Power of AttorneyHealth Care Proxy, or a Durable POA for Healthcare. This legal document allows aging people to appoint another person to make health care decisions on their behalfs, such as continuing life support services, treatment plans, and choosing doctors or specialists. The Medical Power of Attorney cannot be used to make financial decisions, unlike the Durable Power of Attorney for Asset Management, as explained above.

Most MPOAs become effective after a specific health-related event has occurred, resulting in the aging person no longer being able to make or communicate their own healthcare decisions.

One may not need a Medical POA if they instead or additionally have an Advance Health Care Directive (or Living Will) in which they document their healthcare preferences to be should certain medical situations arise. Still, it's improbable to consider all possible health scenarios and outcomes in a single conclusive document.

Decisions that cannot be authorized by an MPOA include lobotomy and electroconvulsive therapy. The decision maker can also refuse comfort care, which ease's pain for a dying person.

For Veterans, VA requires a particular format to satisfy its internal policies about POA'. Veterans should fill out VA Form 10-0137: "VA Advance Directive: Durable Power of Attorney for Health Care and Living Will" Form.

How much does a Medical Power of Attorney cost?

Legal assistance is not required to create an MPOA. There are MPOA templates available online for free. However, as of 2015, Indiana, New Hampshire, Ohio, Texas, and Wisconsin do not allow universal forms. Also, most states require that the document be notarized and there are associated notary fees (usually less than $50).

Advance Health Care Directive / Living Will (AHCD)

An Advance Health Care Directive (AHCD) is traditionally used to give specific instructions about health care decisions, and medical actions should one not be able to communicate their desires.

Creating a directive does not stop someone from making their own decisions when the time comes; it is designed as a backup plan. It's suggested that all aging people create an AHCD if they still need to accomplish these goals through other legal documents like a Medical Power of Attorney. 

Suppose one loses their basic competence without an AHCD. In that case, the medical staff makes medical decisions until the courts can designate someone formally.

How much does it cost to create an AHCD?

There is almost no cost to create an AHCD. You can find a self-service option through the National Healthcare Decisions Day website. Though, if a doctor or lawyer is engaged, the cost may be $500-$1,000 out-of-pocket. You can use a self-service option. Some states require notarization of the document, so a notary public fee can add approximately $50 to the cost.

Last Will and Testament

A will is a legal document controlling the division and distribution of one's estate (or property) upon death. A will cannot divide or distribute jointly owned property, life insurance, retirement benefits, or other assets in trusts.

Who should create a will, and when?

Anyone who has any assets, however small, should create a will. If you die without a will, your assets are distributed by the courts according to state laws. Typically assets are distributed among the surviving spouses or children after the state has taken a portion for administrative purposes.

The sooner an aging person creates a will, the better, as they must have basic competency for the will to be valid. 

How much does it cost to create a will?

You do not necessarily need assistance to create a will. Still, depending on the complexity, you may want assistance. Several websites offer help for a small fee (less than $100). However, using an attorney significantly decreases the chance of error and, therefore, having a will declared invalid. An attorney will likely cost between $250 and $1,000. State bar associations can usually make referrals to specific attorneys or organizations that provide free services.

Do Not Resuscitate (DNR)

Do Not Resuscitate is a form that tells medical professionals that they should not provide CPR or advanced cardiac life support if a person's breathing or heart stops. 

In most states, a DNR does not cost anything, but the process is different in each state. You can download a template from each state's website and have it signed by a physician. Some states may have a registration fee (usually less than $25).

Download your state's DNR forms here:

Alabama 

Alaska 

Arizona 

Arkansas 

California 

Colorado 

Connecticut 

Delaware 

Florida 

Georgia 

Hawaii 

Idaho 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

New Hampshire 

New Jersey 

New Mexico 

New York 

North Carolina 

North Dakota 

Ohio 

Oklahoma 

Oregon 

Pennsylvania

Rhode Island 

South Carolina 

South Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West Virginia 

Wisconsin 

Wyoming  

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Where should I keep these documents?

While these documents may be able to be added to your loved one's medical files, it's also important to keep copies at home in a safe but accessible place. The goal is to be able to quickly hand them to medical providers in the event of an emergency.

End of life can be difficult, and even more difficult if conversations have not been had in advance. Finding time to have open, honest conversations with your loved one can help you prepare and be comfortable with what's to come.

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