July is National Sandwich Generation Month, a time to honor those who are caring for both their children and their aging parents. This topic is particularly germane at present, as many parents are not only parenting their children but have also spent the last few months homeschooling them. Older children who have lost their jobs or were unable to return to college after spring break due to the coronavirus may now be living at home. At the same time, those parents may already be acting as a caregiver for one or more of their parents who are no longer able to look after themselves, or they may have become more involved in caring for aging parents who are at a higher risk for contracting COVID-19. Yikes!
Self-Care Is Crucial
Those who are also working—either remotely or outside of the home—have additional responsibilities beyond caregiving. When juggling so many roles, it is important to receive help and emotional support from others to avoid burnout, depression, and anxiety. Take care of yourself by maintaining a healthy diet and exercising to relieve stress. Schedule a bit of time for yourself to do something you enjoy. Taking time out for yourself is not selfish—on the contrary, if you are burned out, you will be much less able to care for others.
Check That All of the Necessary Estate Planning Documents Are in Place
You can also alleviate the stress of caregiving by checking if your aging parents or adult children have legally valid and up-to-date estate planning documents in place, and if they do not, encouraging them to have these important documents prepared. You certainly should not try to force them to do so or influence their estate planning decisions. However, if they have indicated that they would like you to act as their caregiver if the need arises, or if you have already assumed that role, it is important to know if you are legally permitted to act and make decisions on their behalf if they become unable to do so themselves. This is a relatively simple step to ensure that there will be no delays or uncertainty that might hinder their care. If you have the documents necessary to know and carry out your parents’ or child’s wishes for their care, regardless of the situation, you can be assured that they will receive the care they desire.
- Financial power of attorney. A durable financial power of attorney is typically effective immediately and remains in effect even after the person who makes it becomes mentally incapacitated. If you are named as your parents’ agent under a durable financial power of attorney, this authorizes you, as the caregiver, to make financial decisions and manage financial matters on your parents’ behalf without concern that it will become ineffective if they develop dementia or a similar condition. For example, you will be allowed to pay bills, manage financial accounts, or sell property on behalf of your parents. As an agent under a power of attorney, you are legally bound to put aside your own opinions and make the decisions that are in the best interests of your parents and that they would have made themselves (to the extent you know what they would have chosen). A financial power of attorney is also helpful in the event you need to handle financial matters on behalf of your adult child (eighteen or older), for example, cashing a paycheck for your child or signing a new lease on your child’s behalf. If you have an existing Power of Attorney drafted prior to 2010, it should be reviewed for conformity with current law.
- Health Care power of attorney. A durable health care power of attorney enables you to manage your parents’ health care if they are unable to do so. As with a financial power of attorney, it is crucial for your parents’ health care power of attorney to be durable; this ensures that it will continue to be legally valid even if they develop a condition that renders them unable to communicate their wishes or make their own decisions about their medical care. The health care power of attorney will authorize you or another trusted individual, as the health care agent, to make important—even life and death—decisions about the treatments they will receive if they are unable to make those decisions themselves. Certain decisions, for example, whether to hire a paid caregiver, may involve both medical and financial considerations and could be authorized under either or both the durable financial and health care powers of attorney. As is the case with the financial power of attorney, your own opinions must be set aside because, as an agent under a power of attorney, you must make the decisions that your parents would have made. A health care power of attorney is also incredibly important if you are supporting an adult child in any way so that you are authorized to make medical decisions for the adult child if necessary. Although you can make such decisions for a child when the child is a minor, an adult child has the right to designate a health care agent. The Virginia Health Care Decisions Act was updated in 2009. Documents drafted prior to 2009 should be reviewed.
- Living will. Your parents’ or child’s living will allows them to communicate their end-of-life wishes in writing, so that you, as their caregiver, will not have to agonize over a difficult decision about whether to keep them on artificial life support or a feeding tube, authorize a particular treatment, or ask medical professionals to resuscitate them if they stop breathing. These are decisions that are best made well before a medical crisis occurs. No caregiver wants to be in the position of guessing what their beloved parent or child would have wanted or suffering through disputes with family members who may have conflicting opinions about a parent’s or child’s care.
- HIPAA authorization. The Healthcare Information Portability and Accountability Act (HIPAA) requires medical records to be kept private unless an individual consents in writing to sharing of protected health information with a named individual. If you are your parents’ caregiver, they should fill out and sign a HIPAA authorization permitting doctors to keep you informed about their medical conditions and treatments. This is also true if you are still providing health insurance or care for an adult child. Although your child may be covered by your health insurance, as a legal adult, your child’s medical information is protected under HIPAA, and you must be authorized to receive it.
Warning: The legal requirements for estate planning documents vary from state to state. If your parents have moved from another state to live with you, they may need to have their documents reviewed or redone to ensure that they are valid in Virginia.
It is crucial for your parents to put these documents in place before they develop any condition involving a cognitive loss that would prevent them from having the capacity to sign a legal document. If they develop dementia, for example, and are not able to understand the objective or content of a power of attorney or other document, they will be legally unable to execute the document. In that case, you will have to go to a court and ask to be appointed as your parents’ guardian to care for their physical or medical needs and as their conservator to manage their financial affairs. This takes time and money, involves public testimony and evaluations about your parents’ health and living situation, and is completely avoidable if the necessary documents are prepared in advance. It is also important that these documents be put in place by your adult child, regardless of any health conditions, because once your child is a legal adult, you can no longer automatically act on your child’s behalf.
We Are Here for You
Caregivers do not always remember to take steps to lighten their load. It is important not only to recognize your own emotional needs and develop skills to manage the stresses of caregiving but also to reach out to others for help when you need it. We can put your mind at ease by assisting your parents or adult children with the necessary estate planning documents to ensure that you (if you have been asked to act as their caregiver) can act quickly to make decisions on their behalf. Please call us today so we can help your family feel confident that plans are in place to protect their best interests for the future.
Content provided by WealthCounsel; edited by M. Eldridge Blanton, III