LEGAL ADVICE—Very Important: Care of the Caregiver

By on October 6, 2015
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By William B. Howell

Much has been written through the years about how to care for a person suffering from Alzheimer’s or other forms of dementia, from Parkinson’s disease, or from a disabling stroke. There is a large volume of information available to assist in these endeavors. However, what all too frequently is overlooked is the care for the person who is giving the care to the victim of disability: that is, the care of the caregiver.

Almost all of us have known someone who has been a caregiver and who passed away prior to the person for whom they were caring. There are those situations in which a caregiver, while providing care for a loved one, had a stroke or became otherwise incapacitated, themself. What happens under those circumstances?

If the caregiver becomes incapacitated, not only does the family have two people to take care of, they may also not have the proper tools in place to allow them to exercise that caregiving. Specifically, they need an Advance Health-Care Directive for the caregiver, with the HIPAA authorization as a part, in order to allow the medical care to be tended to in an informed manner. There also needs to be, at a minimum, a very well written and quite thorough Durable Power of Attorney, which includes gifting authority.

Even better in many instances is to have a Living Trust, which will allow a chosen person to take care of the caregiver in the event that the caregiver becomes incapacitated, or in the event they pass away. A properly drafted and funded Living Trust will allow the family to avoid having to rely on a power of attorney (which is often not honored), having to go to court for a conservatorship at disability, or having to go through probate at the death of the caregiver.

That second eventuality, that is, the death of the caregiver, also can be quite problematic. In many instances, the person for whom care is being rendered may be in a nursing home and may be receiving benefits from Medicaid. If that should be the case and the spouse caregiver passes away, the Medicaid recipient may be the beneficiary of the assets owned by the deceased caregiver spouse, resulting in a sudden disqualification for Medicaid benefits which have been paying for nursing home care.

This type disaster can be readily avoided with a proper Will or other structure for the caregiver spouse, written in such a way that if the caregiver spouse does pass away then the spouse in the nursing home will not be disqualified for Medicaid benefits. Of course, this type Will must be written with considerable care by an attorney who is familiar with Medicaid planning and the prevention of disqualification.

In short, the care of the caregiver can have as much to do with the providing of attention to the needs of the incapacitated person who is being cared for as it does direct planning for the incapacitated person himself. It is part of an overall plan for the estate and for the long-term care arrangements that should always be in place for any husband and wife where one of the two is in need of assistance and continuing care.

It may not be needed today, but what about tomorrow? Preparing for those “what ifs” is what good planning is all about. While it is not possible to anticipate and prepare for every eventuality, those that are not remote in possibility, or that are likely to happen given a person’s health and history, are well worth planning for. It will make you and your family that much more secure, and make taking care of the caregiver that much easier.

Get some advice, do it right, and you can minimize the worry for the entire family