Caregiver's Handbook--Part 8 of 9

Legal and Financial Affairs
Liability of Caregiving
Choosing a Residential Care Facility

Legal and Financial Affairs

Compiling an Inventory
Managing a Will and Financial Affairs
Durable Power of Attorney for Health Care
Lantern-Petris-Short Conservatorship (California only)
Selecting an Attorney

Liability of Caregiving

When is it Time to Stop Caregiving?

Choosing a Residential Care Facility



Older people continue to be concerned about management of their assets and property. However, they may be unable to participate because of illness, confusion or loss of memory. It is important to involve them whenever possible.

Compiling an Inventory

Develop an inventory which lists all assets and liabilities of the older person. The following items should be included: bank accounts, pass books, certificates of deposit, money market funds, stocks, bonds, precious metals, jewelry, real estate deeds, promissory notes, contracts, insurance policies, safety deposit boxes (including location of the key), and retirement or pension benefits. Location of the records for each asset and liability also should be included. Other important documents, such as birth and marriage certificates, social security numbers, divorce decrees and property settlements, income tax returns (state and federal), death certificate of spouse (if any), and wills (including the attorney's name and executor) or trust agreements, should be listed and the locations designated. If able, the older person should compile the list. If unable, a family member, attorney, banker, accountant or certified financial planner can help compile the inventory which should be copied and kept in a safe, obvious place, possibly with a relative or friend. It is important that the document be updated every year.

Managing a Will and Financial Affairs

An objective of financial and estate planning for older people is to plan for the orderly distribution of the estate upon their death, according to their desires. Consequently, it is important for people to have a will drafted, which incorporates the above inventory and states how property is to be disposed of upon death. Everyone over the age of 18 should have a will or a similar legal document.

If a person does not have a will, an attorney should be consulted immediately. Proper planning is essential and powers of attorney or trust agreements should be executed while a person is still competent. Otherwise, transfer of responsibility for management of the person's financial affairs to someone else must be completed through a court action, and costs spent in clearing up Probate problems come directly out of the person's assets, diluting whatever estate is left after death.

Remember, as caregivers concerned about the financial affairs of a carereceiver, you should not get directly involved without legal authority. Acting without clear legal authority, even with the best intentions, can cause serious problems.

The legal mechanisms available for surrogate decision making are: durable power of attorney (DPA), probate conservatorship, durable power of attorney for health care (DPAHC), and (California only-check to determine if your State has comparable laws.)

Durable Power of Attorney is a written legal document giving someone other that the *Principal* the authority to handle the Principal's financial decisions. It must be signed by the Principal while the Principal is still legally competent. The DPA is valid without time limit until the Principal either revokes the DPA or dies, or the court revokes the DPA due to mismanagement. The preferences of the Principal regarding the management of assets can be specified. This power to manage assets can be transferred immediately or can be designated to go into effect when it is determined that the Principal has become mentally incapacitated. Financial decisions made by an individual given DPA by the Principal are binding on the Principal and his/her successors, so caregiver and carereceiver are urged to seek the advice of an attorney.

Probate Conservatorship or Conservatorship of Estate allows for the management of the Principal's money and other property when the Principal presently lacks the capacity to either decide or appoint another to decide financial decisions in his/her behalf. Court proceedings to designate a conservator are required. This is a difficult and extreme procedure but may be necessary if the carereceiver is already incapacitated to the extent that he/she is unable to manage personal financial affairs.

Durable Power of Attorney for Health Care (DPAHC)

This is a written document which must be signed by the Principal while he/she still has the capacity to make decisions. The DPAHC gives someone other than the Principal authority to make medical treatment and health care decisions on behalf of the Principal for up to the maximum of seven years after the document is signed. It allows one to specify ahead of time how he/she wishes these decisions to be made. Wishes regarding extraordinary supportive care, including breathing machines and tube feeding, can be addressed in the Durable Power of Attorney. All adults should have a Durable Power of Attorney for Health Care.

Lantern-Petris-Short (LPS) Conservatorship

(California only-check for comparable laws in your State) or conservatorship of person is a court-ordered process which enables a person to get the psychiatric and/or medical care needed but by reason of mental illness is refused. The court determines if the Conservatee, in addition to receiving the necessary psychiatric treatment, may also retain or be denied the right to vote, possess a driver's license, enter into contracts, or refuse non-psychiatric medical treatment. The Conservator may be a relative, friend or an appointee from the Conservator's office. The Conservator may be given the right to require and authorize the conservatee to receive involuntary psychiatric and/or medical treatment and supervises and assists in making proper living arrangements, including placement in a Residential Care or a nursing home when indicated by the doctor. In order to start the process, one consults either with his/her attorney or calls the Office of the Counselor in Mental Health. An individual has to be adjudicated to be gravely disabled before being placed on an LPS conservatorship. Grave disability is defined as the inability to provide for one's food, clothing, shelter and proper medical care due to a mental disorder.

Selecting an Attorney

It is important to select an attorney who is knowledgeable in the areas needed (estate planning, will drafting, probate or conservatorship). Ask friends or other professionals for recommendations, or contact a Lawyer Referral Service, County Bar Association, or Senior Citizens Legal Services. Before agreeing upon a particular attorney, ask if he/she has previously done what you require.


Anyone who accepts the responsibilities of a caregiver must also understand that there are a number of legal duties or liabilities that come with it. Many states including California have passed elderly abuse laws. Caregivers are bound by these laws in two ways: not to abuse the elder person (physically, mentally or monetarily) and report any incidents of abuse or suspected abuse to (California residents only-the Adult Abuse Reporting line 476-6266 or 1-800-523-6444). (Residents of states other than California: Check you local telephone directory for the Adult Abuse Reporting telephone number or contact your county mental health services for guidance.)

As a caregiver, you must provide a clean and safe environment, nutritious meals, clean bedding, and clothes. At the same time, if you are in charge of the elderly person's finances, you must use that money properly, purchasing necessary services for the benefit of the person to whom care is given. Failure to provide care, failure to get care, and failure to purchase care are all forms of abuse or neglect.

In addition, caregivers may not physically, sexually or psychologically abuse the person receiving the care. Yelling, screaming, withholding affection, etc., are as much an abuse of the person as is striking the person with the hand or with objects. Therefore, if you are contemplating becoming, or are now a caregiver, you must be ready to accept the physical, psychological and legal duties to provide the necessary care. If you are reaching a point where you are no longer able, physically or emotionally, to provide the proper care, we urge you to consider the alternatives to personal caregiving and to seek help with this decision from a counselor or one of the resources available in Appendix A.

When is it Time to Stop Caregiving?

As we have stated repeatedly throughout this booklet, caregiving is a very stressful situation. Stress either causes or exacerbates some 70 to 90 percent of all medical complaints, including tension and migraine headaches, high blood pressure, asthma, nervous stomach, bowel problems, and chronic lower back pains. There is research evidence indicating stress plays a role in a person's susceptibility to heart disease, stroke, and cancer.

Stress has also been implicated in psychological disorders such as anxiety reactions, depressions and phobias, as well as poor work performance, drug and alcohol abuse, insomnia, and unexplained violence. If you are experiencing any of the above, it is extremely important that you learn and use various techniques for stress reduction (some are mentioned in this booklet), contact one of the professionals in Appendix A or come to the decision, both for your well-being and that of your carereceiver that *It is time to stop caregiving.*

Below are some telltale signs which can help you assess when you have reached this fork in the road; seek help professional help, utilize more stress reduction methods, or stop caregiving:

While these are not exclusive, they indicate a classic picture of *caregiver burnout.* The treatment for caregiver burnout is simple -- get help and get away for extended periods, either through stress management respite help or through a complete change in caregiving.

No one can remain a full-time caregiver forever; the job is much too strenuous and stressful. The point we wish to set forth is: *When should I say this is my limit; I am not able to do any more.* Be honest with yourself, and when *that limit* has been reached, STOP! Research alternatives, request help from qualified professionals, and rest easy, because you did the right thing!


In making the decision to seek an alternate living arrangement for your carereceiver you will first need to consult with your physician. The physician can be your best ally since most facilities require a current complete physical exam and the physician can assess the *level of care* your carereceiver needs. This is important in order to determine which type of licensed care facility you will be seeking, from the Acute Hospital to Sub-acute Skilled Nursing Facility (SNF), Intermediate Care Facility (ICF) or Residential Facility for Elderly (RFE) (more commonly referred to as Board and Care or Retirement Homes). The RFE is for non-medical care and supervision which may include personal services (help in bathing and grooming, guidance in dressing, aid in taking self-administered medications) and help with other daily living activities.

Seek a licensed facility, since people who need care and supervision are often defenseless against abuse or exploitation. The law requires that care facilities be licensed. So when you select a care facility, check for the license to assure the protection provided by law and quality care for your loved one.


It is ideal if both you and your carereceiver could preview a care facility prior to deciding. Both prior to and during the preview process you have the opportunity to further discuss your feelings in making the decision. Since you have many things to do during your visit, you will find the outing less stressful and easier afterward to evaluate if you organize your thoughts beforehand, write down the questions you wish to ask, carry this checklist during your visit and make notes while looking around and talking to different people. Some items you may want to cover during your initial visit to insure quality care are:

Contact your County or State Department of Social Services for a copy of their *Consumer's Guide to Community Care Facilities* or equivalent. (In California, a booklet entitled *A Consumer's Guide to Community Care Facilities* details a 6-page checklist for facility visits. A copy may be obtained from: The California Health & Welfare Agency, Department of Social Services, 744 P Street, Sacramento, CA 95814 (tel: (916) 445-4500).


This handbook is available from San Diego County through the efforts of many collaborators. I hope it will serve as a reference tool for the new and veteran caregiver. It can never be said often enough that that YOU, the caregiver, are incredibly important!

The welfare of another person, the carereceiver, depends on you. If you are not in good health, the carereceiver also may suffer. If you have taken on the role of a caregiver you have also accepted a special responsibility to take care of yourself. So, good luck and good care.


End of part 8

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