AgingCare – Updated for October 2021

Author: AgingCare Affiliate

Sometimes people become more vulnerable as they age. Too often, seniors are taken advantage of, which is why adequate legal planning is crucial. Unfortunately, many families fail to make these preparations until it’s too late or the plan they thought they had in place fails. As a result, it is all too common for family caregivers to find themselves in sticky legal situations.

Common Elder Law Issues Caregivers Will Want to Avoid

Below are some common questions from members of the Caregiver Forum about the legal troubles they have faced throughout their caregiving journeys. Many are avoidable with careful planning, while others are difficult or impossible to anticipate and prepare for.

1. Problems With Power of Attorney

Drafting a power of attorney (POA) document to designate someone to act as your surrogate decision maker for medical and/or financial matters is a crucial part of planning for the future. However, this useful tool can cause friction among family members and headaches with other entities like banks.

• “How is my mother’s power of attorney held accountable for financial decisions?”
• “The bank will not acknowledge my POA. What can I do?”
• “Can I get POA for a person with advanced dementia?”
• “I no longer want to be POA for my dad. Any advice?”

2. Seeking Guardianship of an Elder

Legal troubles abound in cases where an aging loved one hasn’t named a power of attorney before becoming incompetent, or the person they chose has been accused of mishandling their affairs. Lengthy and expensive guardianship proceedings are usually necessary to appoint a trustworthy person to manage a senior’s medical care and/or finances.

• “My father didn’t have POA and ended up in a coma. How can I go about getting medical information from the hospital so I can help him?”
• “Secondary POA is acting before primary POA and stealing. How can we legally stop the financial and mental abuse without me draining my funds?

3. Preventing and Prosecuting Elder Abuse

There are many kinds of abuse that seniors can fall victim to at the hands of strangers and even the people they are closest to. While those with Alzheimer’s disease or other forms of dementia are considered the most vulnerable, even cognitively sound elders are susceptible to scams and other fraudulent activity.

• “What do I do if I suspect an elder in my life has been a victim of financial fraud, but they won’t share any information with me?”
• “What steps can I take if I believe my parents were taken advantage of by a remodeling company?”
• “Is there anything I can do about my widowed grandparent who is being sweetheart scammed?”

4. Accusations of Abuse or Neglect

Whether it is due to dementia or out of spite, elderly loved ones and even other family members sometimes accuse primary caregivers of elder abuse. Even if their claims are unfounded, the accused may still wind up dealing with APS investigations and even legal action.

• “How do I protect myself from Adult Protective Services (APS)?”
• “Can I be held legally responsible for damages to my mother’s house or injuries that may happen to her in my absence?”

5. Estate Administration

Administering a decedent’s estate involves collecting and managing their assets, paying debts and distributing remaining assets to beneficiaries. A will is a legal document that spells out one’s wishes for their estate after they’ve passed away. Sadly, many people do not write a will, fail to update it regularly or do not make it accessible to the family members who need it. While wills are supposed to simplify this process, they can be divisive legal documents for many families.

• “If my friend, for whom I am both financial and medical POA and trustee, dies without a will, what are the ramifications?”
• “My attorney says I can contest my dad’s will. Any thoughts?”
• “How do I find out if my sister left a will?”

Consult an Attorney Who Specializes in Elder Law Issues

Whether you are new to caregiving and need to help an aging loved one get their affairs in order, or you have been providing care for years and require assistance navigating an unexpected legal issue, it is important to seek guidance from a knowledgeable source. When searching for an attorney to help with caregiving issues, look for legal professionals who specialize in elder law. The National Academy of Elder Law Attorneys (NAELA) and the National Elder Law Foundation (NELF) are two professional organizations devoted to furthering the practice of elder law, organizing and educating attorneys who specialize in this field, and serving older adults and individuals with special needs. Both the NAELA and NELF websites are excellent places to start your search.

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