Caregivers Need Legal Advice
Caregivers today, more than ever, need legal advice. Most of them are not receiving it. When Mom moves in with her son and daughter-in-law or Dad jointly titles assets with one of his sons after his wife’s death, there may be legal consequences, both good and bad. Sorting through the issues up front becomes critical. Here are some of the many questions that need to be addressed.
Can daughter-in-law be paid for her services. How should Mom’s contributions to household expenses be counted. Where assets are jointly titled, was the parent’s intent to leave the bank accounts, stock, or his home to one adult child and not the others or was this done for convenience. If an addition is being considered for Mom’s new living quarters at her daughter’s house, can Mom pay for it from her own funds and should she. Can Dad buy a life estate in his son’s home. When, if ever, could or should a parent add an adult child’s name to the title of her residence. What are the legal and practical consequences if he does just that and adds his children’s name to the title. Does it matter whether the adult child lives with the parent.
If a daughter contributes to the cost of her parent’s care can she be reimbursed. Should she document her payments and how much detail should be included. Does the timing of the payment matter. Does a son have the legal authority to hire an outside companion or caregiver and pay that person or agency from his parent’s funds. What legal documents should he have to assure that he has that authority. Should family members provide services for free or should they charge. If they charge, are there rules regarding how much can be paid and whether the income is claimed on a tax return.
If a child takes his parent into his home and later finds that he is unable to cope, what resources are available in the community to help. Are any legal responsibilities assumed by moving a parent into a son’s home if the son and his family find later they are unable to continue to care for the parent.
Tax issues also arise. Can a parent be claimed as a dependent for federal income tax purposes. Can his medical bills be deducted if paid by a family member. Should they be paid by a family member.
What is the effect of all of these decisions on a parent’s ability later to receive benefits for long term care and on his estate plan for future generations.
Family Agreements can address all of these issues. They should incorporate legal, care, and financial solutions. They can also be updated as conditions change. Well drafted Family Agreements not only assist where there is a later claim for benefits but also describe to family members the responsibilities, compensation, if any, and expectations of each. The consensus might involve greater involvement by other family members or solutions that benefit the more involved family members but, importantly, the results should be understood and viewed as fair by the affect parties.
Finally, an adult child might ask whether he can be considered responsible for his parent’s support or for his medical or nursing home bills. Accepting a parent into his home does not cause a son to become a “responsible party” for his parent’s medical or other bills but he should protect himself. When signing hospital admission forms and other documents using a parent’s name, the adult child should state that he is acting “as agent only” or as “power of attorney” if he is power of attorney. He should not sign as “Guarantor” or “Indemnitor.” When paying bills with his parent’s funds, he should use those funds wisely and develop a plan to avoid running out of money. This can include filing for benefits when needed and obtaining assistance as needed.
Here are some recommendations. The adult son or daughter should, before the move or shortly thereafter, make sure that his or her parent has in place legal documents including Will, Living Will, Health Care Power of Attorney and Financial Power of Attorney. She should do the same for herself with backups. He should not sign any legal documents unless obligations are understood. Then, he or she should enjoy the time as best as possible with a sense of humor. For some adult children this is a first opportunity to get to know a parent as one adult to another.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.