PLANNING FOR WEALTH & SECURITY

By Attorneys Jennifer & Jeff Hawkins

TAKING CARE OF SICK PEOPLE – WHAT’S MY JOB?

Most of us become deathly ill sooner or later and depend upon other people to take care of us. We should all plan for this problem ahead of time so that our caregivers can be well prepared to do the job well. As a caregiver, knowing the ins and outs of the care giving job can make the job much easier and less stressful.

Health Care Decisions

Indiana law authorizes a parent, child, spouse, or sibling to make healthcare decisions if a person cannot make his or her own healthcare decisions. However, Indiana law does not authorize anyone to make other decisions for an incapacitated person unless a judge gives the caregiver that authority or the incapacitated person plans ahead with a power of attorney.

Guardianships

Only a minority of people actually plan properly for debilitating illness. Most people do not establish powers of attorney to empower other to care for them in times of sickness. In these circumstances, a caregiver must petition a court for appointment as the sick person’s guardian. Once a guardian is appointed, the guardian can consent to most healthcare decisions and business decisions in a fashion similar to the way a parent can consent on behalf of a young child. This process can take several days or weeks to complete and requires fairly expensive court action.

Powers of Attorney

A person can make a power of attorney that authorizes another person to provide care and make decisions if the giver (the “grantor”) of the power of attorney loses the ability to take care of himself. The power can be made effective immediately after the grantor’s signature on the power of attorney or it can be made to “spring” into effect only when the grantor becomes disabled.

Caregivers Beware!

A person caring for an incapacitated person has certain rights and responsibilities. A person having a power of attorney has no obligation to use a power of attorney or act on it in any way. However, if the person uses the power of attorney, he or she must use it wisely and protect the incapacitated person faithfully. Generally, the caregiver can only use the incapacitated person’s money to take care of the incapacitated person.

Some key issues have cropped up in recent years concerning the admission of sick people to nursing homes. Most of problems surround nursing home admission agreements.

One very controversial admission contract provision requires arbitration of disputes. This language requires a nursing home resident to submit any complaint to an arbitrator instead of taking the nursing home to court. The language can deny a resident the right to recover special damages against the nursing home for injuries caused to the resident.

You should also be aware that a nursing home admission agreement can make the caregiver financially responsible. Most agreements obligate the caregiver to be personally responsibility for paying the nursing home bill. If the nursing home accepts Medicaid payments from the State of Indiana, the caregiver may have to apply for Medicaid benefits for the nursing home resident.

Caregivers should read the documents that they sign as caregivers very carefully. If you expect that the person for whom you are caring will go to a nursing home soon, you should investigate several nursing homes and ask to see copies of their admission contracts before you sign them. If any language in the agreement does not make sense to you or seems to be disagreeable, you should ask an attorney to explain it before you sign it.

Life is rarely as simple we expect. A healthcare crisis is always a difficult situation, but it can be made less traumatic if we plan ahead of time to deal with emergencies.

THIS ARTICLE IS NOT LEGAL ADVICE. ALWAYS CONSULT AN ATTORNEY DIRECTLY BEFORE RELYING UPON THIS ARTICLE OR CHANGING AN ESTATE PLAN.

© 2004 by HAWKINS LAW PC, Estate, Trust & Business Attorneys. All rights reserved.