Legal Considerations for Family Caregivers

By Family Caregivers' Network Society


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Incapacity planning is the major legal consideration that impacts a caregiving relationship; personal planning focuses on arrangements for when you are alive, and estate planning for when you die.

If you are the caregiver, it is important to ensure that the person you are caring for has completed an Enduring Power of Attorney and a Representation Agreement. These documents help ease future decision-making if there comes a time when your loved one is incapacitated due to sickness, mental illness or injury.

These decisions can include withdrawing money from the bank, selling a house, signing a contract or providing informed consent for a medical procedure.

A Power of Attorney (POA) appoints another person, an “attorney,” to make financial and legal decisions for you. An Enduring Power of Attorney is needed to ensure that the appointment endures, even if the person who has made the POA becomes mentally incompetent. If an Enduring POA is not in place and mental incapacitation occurs, the designation automatically ends and the family may need to apply for a court order of committeeship, which is costly and time consuming. When appointing an attorney, designate someone who is trustworthy, and comfortable and capable of dealing with financial matters.

A Representation Agreement authorizes someone to assist or to act on someone’s behalf to manage their health and medical affairs when they are no longer able. It is important that the person communicates his or her preferences and how they want to be cared for to the appointed representative.

If no Power of Attorney has been completed, and a person is incapable of managing his or her own financial affairs, the Public Guardian and Trustee’s Office (PGT) or a court-appointed committee may be required. Also, if at the same time, no representative has been appointed to make medical decisions, the attending doctor may appoint a substitute decision maker, if available. Otherwise, the PGT may need to step in.

In families, the primary caregiver who provides personal care and support may not be the ideal person to appoint as attorney. Similarly, the person appointed as attorney may or may not be best suited to make medical decisions. The family needs to take into consideration each member’s strengths, and discuss who will be appointed in each situation to help the process flow more smoothly.

The Nidus Personal Planning Resource Centre & Registry provides detailed information on all areas of personal planning. Get more information online at www.nidus.ca or by calling 604-408-7414. The Public Guardian and Trustee of British Columbia can be reached at www.trustee.bc.ca or by calling 250-256-8160 or 604-660-4444.

Take the time to complete these documents before a crisis occurs. Consult a lawyer to prepare these documents and for advice on how to best meet the needs of your specific situation.

 

NOVEMBER 2010 SENIOR LIVING MAGAZINE VANCOUVER ISLAND
NOVEMBER 2010 SENIOR LIVING MAGAZINE VANCOUVER & LOWER MAINLAND

 

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