The daily tasks of being a primary caregiver of anyone, let alone an aging parent, can be challenging and stressful. This is especially true if you don’t know all the resources available to you and your parent, or don’t have time to research available public benefits on your own. Planning for the care of your loved ones now and into the future is what elder law is all about. Speak with an experienced elder law attorney to ensure your family’s needs are properly met so health care and financial decisions can be made when your parent isn’t able to do so on his or her own, and without potentially sacrificing eligibility for public benefits. As a caregiver, here is some important information to consider, especially when your parent cannot make decisions for himself or herself, has assets, and/or you are looking at options for long term care. Six frequently asked questions:
1. When is the best time to plan for an aging parent?
Start planning is as early as possible, preferably when your parents are competent, healthy, and best able to participate in the process. However, if no planning has been done and they aren’t able to participate, it’s not too late to help your loved ones. Starting later may just mean that your plan may be different and perhaps more limited than it would have been.
2. What estate planning documents should my parent have?
It’s important that while your parents have capacity to make decisions for themselves that they have a qualified estate planning attorney assist with the drafting and execution of the following estate planning documents (listed in the order of importance to help them with issues during their life):
- Durable Powers of Attorney
- Health Care Powers of Attorney and Living Wills (A Living Will may also be called an advance healthcare directive, medical directive, or personal directive)
- HIPAA Authorizations
Depending on your circumstances and your parents’ conditions, if you cannot afford to have all of these documents prepared at one time, start at the top of the list.
3. Can I make decisions for my parents?
This depends. Generally, a person (the “principal”) grants another person (the “agent”) the ability to assist with decision-making on behalf of the principal, which is typically done through the execution of a Power of Attorney. First, you should determine whether your parents have executed a Power of Attorney. If so, you should review the document to determine whom your parent has named as the agent. It’s important for the agent to review the document to determine when his power becomes effective (e.g., at the time that the principal executed the document, when the person has been determined to be incapacitated or incompetent, etc.) and what power the agent possesses (e.g., financial, medical, both). Finally, some states require that the Power of Attorney be recorded or that an agent sign an acknowledgment to the document, indicating that he understands his duties.
If your parent did not execute a Power of Attorney or you cannot locate it, but you need the authority to make decisions on behalf of your parent, then you may want to consider pursuing guardianship. Guardianship may also be referred to as conservatorship in some states when dealing with an individual’s financial affairs. Guardianship is a legal process in which you are requesting a court to:
- Make a determination that the individual due to a condition (e.g., mental illness, senility, etc.) lacks the capacity to manage the individual’s affairs or does not have the ability to make or communicate decisions regarding his health, safety, welfare, and/or finances, and
- Appoint an individual to serve as guardian, who then has decision-making ability.
In comparison to a power of attorney, guardianship is a lengthier and more costly process and potentially removes all rights from the incompetent individual.
4. Will my parent need to sell their home to go into a nursing home?
Most people often (incorrectly) assume that the parent’s home must be sold before the parent can go into a nursing home. If the individual’s primary residence has to be sold because it’s the only asset available to privately pay for care for the parent in a facility, it is likely that he may qualify for public benefits to help pay for the cost of care. When determining eligibility for these public benefits, an individual’s primary residence is oftentimes an excluded resource, meaning that in certain circumstances its value is not included in calculating the individual’s available resources. Also, there are some limited situations in which an individual may transfer his primary residence and not cause a transfer penalty. These are very specific situations, thus an experienced elder law attorney should be consulted to ensure that the transfer is done properly and does not inadvertently cause the individual to become ineligible for public benefits.
5. Will my parent need to spend all of their resources on care in a nursing home?
Not necessarily. If proper elder law planning is done, an individual may be eligible to qualify for Medicaid without spending all of his resources on skilled nursing care. A Medicaid Long Term Care recipient will need to use his income, less some deductions, toward the cost of his care in a nursing home; Medicaid will cover the difference between the actual cost of care and the individual’s income. When one spouse requires skilled nursing care, there are techniques available to protect resources for the spouse that does not require such care.
6. What benefits are available to help me care for my parent in a facility? In my home?
This is going to depend on which state your parent intends to receive care in as every state offers different programs.
With respect to care in a facility, Medicaid in North and South Carolina is available to help pay for care in a nursing home so long as your parent meets the eligibility requirements. North Carolina offers State/County Special Assistance (SA) that helps pay for care in an assisted living facility that accepts SA. South Carolina’s Community Choices Medicaid Waiver, which was formerly known as the Elderly and Disabled Waiver, offers a variety of benefits and services, which may assist with payment for care in an assisted living facility.
Regarding in-home care, South Carolina offers a variety of Waiver programs that have different eligibility requirements and provide different services and benefits to a person in his own home. The Waivers offered in South Carolina include the following:
- Community Choices Waiver;
- HIV/AIDS Waiver;
- Ventilator Waiver;
- Head and Spinal Cord Injury Waiver;
- Intellectual Disability/Related Disabilities Waiver;
- Pervasive Developmental Disorder Waiver; and
- Program for All Inclusive Care of the Elderly (PACE).
North Carolina has numerous programs to assist with the care of an individual in his own home. Personal Care Services include assistance with activities of daily living, monitoring vital signs, housekeeping, and other household tasks that are essential for maintaining the individual’s health. The Community Alternatives Program (CAP) provides in-home care to recipients who would otherwise need to be in a skilled nursing facility. The CAP/C program is available to children, and the CAP/DA program is for disabled adults. North Carolina also offers Program for All Inclusive Care of the Elderly (PACE).
Contact the qualified elder law and estate planning lawyers at Weaver, Bennett & Bland, P.A. to discuss your family situation and ensure you have the proper plans in place to care for your parents as they age. Call (704) 844-1400.
Crystal L. Welton is an estate planning, estate administration, elder law, and special needs planning attorney at Weaver, Bennett & Bland, P.A. Contact Crystal at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and Crystal L. Welton or the law firm of Weaver, Bennett & Bland, P.A.
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