When the time comes for long-term care, most elders prefer to stay in their present location, even if staying puts distance between them and their caregivers. Although distance creates legal and financial pitfalls, you and your elder can take steps to avoid them.
When important decisions are being made long-distance, the elder should establish a current estate plan that is recognized in his or her state. Generally, the estate plan includes a will, as well as documents that protect the elder in the event that he or she becomes incapacitated.
Since laws vary from state to state, planning that may be appropriate in your state may not be appropriate in the elder’s state. To cover any necessary state-specific provisions, it may be best to hire an attorney who practices in the elder’s state. This ensures that the advice received pertains to that particular state’s laws and incorporates seamlessly into the estate plan documents.
A Question of Authority
The most common legal issue confronting caregivers is lack of authority to handle financial and medical decisions when the elder becomes incapacitated. With proper documentation, this authority can be granted to the person that the elder designates rather than a court-appointed party.
It is paramount for family members to discuss with the elder the need to nominate someone to handle financial and medical matters while the elder can still express his or her wishes. In Massachusetts, the elder would execute (1) a durable power of attorney relative to financial decisions and (2) a health care proxy relative to health care decisions.
In each document, the elder names someone to handle his or her financial and health care decisions when he or she no longer can.
Together, a durable power of attorney and health care proxy protect the elder from guardianship, which is the timely, expensive, and very public process of having a decision-maker appointed for the elder by the court.
To cover all bases, if there is a possibility that the elder may ultimately move to the caretaker’s state, it is wise to consult an attorney in each state when drafting the documents to ensure validity in each state. Without this forethought, it is possible that the elder’s wishes will not be followed, especially if the elder moves after losing his or her capacity to execute new documents.
Financing long-term care also causes many caregivers and elders to falter. Oftentimes, the elder believes that public benefits (Medicaid) will pay for his or her long-term care. Each state’s laws vary with regard to obtaining approval, and there are also likely to be vast differences concerning various issues, including asset limits and the effect of gifts. Proper planning can ensure that the elder receives benefits sooner, when they are most needed, rather than later.
Finally, since each state varies in its estate recovery efforts (the state’s efforts to recover benefits paid for care from the estate of a recipient who has passed away), proper planning can minimize exposure of the elder’s estate to recovery efforts.
Although long-distance caregiving is a legal minefield, it is possible to minimize problems by simply addressing issues before they arise. Long-distance caregivers should actively seek information and seriously consider working with an elder law professional in their elder’s area for help avoiding the pitfalls.
Long-term care is difficult enough on the elder and family members. Careful planning can ease the sting of painful decisions at a time when most of us are least able to effectively address them.
Cheryl J. Dunn is an attorney at law with Bacon & Wilson P.C. in Springfield; 781-0560.