Navigating the minefield of caregiving from a distance

By Gina M. Barry, Esq., Partner, Bacon & Wilson. P. C. - Special to PRIME When the time comes for long-term care, most elders prefer to stay in their present location, even if staying there means being at a distance from their primary caregiver. Although the distance creates many hazards, both the elder, and the caregiver can take proactive steps to help avoid the minefield of legal and financial issues that await you. Caregivers need authority to act The most common legal issue confronting caregivers is lack of authority to handle financial and medical decisions if the elder becomes incapacitated or incompetent. By executing a Durable Power of Attorney and Health Care Proxy as part of their Estate Plan, the authority to make financial and medical decisions can be granted to the person that the elder chooses. Thus, while the elder is able to express his or her wishes, the caregiver should discuss the need to legally establish someone to handle financial and medical matters in the event of incapacity. The caregiver should also be sure to discuss end of life decisions with the elder and ensure that the elder's wishes are put in writing within the proper legal document. The estate plan should also include a Will so that there are clear instructions as to the disposition of the elder's estate upon their passing away. Check the laws on both ends As the law varies from state to state, another common legal pitfall arises when the estate planning documents are not valid where the elder (now) lives. This pitfall usually arises in one of two ways:

1. the documents were prepared in the caregiver's state and are not valid in the elder's state or,
2. the documents were prepared in the elder's state and the elder moves to the caregiver's state as the elder's health declines and the documents are not recognized in the caregiver's state.
To avoid the pitfall of having unusable estate planning documents, it is best to hire an elder law attorney practicing in both the elder's and the caregiver's states so that you can be sure the advice you get pertains to the law of each state and that any necessary state-specific provisions will be incorporated into the estate plan documents. Otherwise, it is possible that the elder could lose the protection of the documents, especially if the elder moves after losing his or her capacity to execute new documents. Navigating public benefits Another area loaded with potential problems for the long distance caregiver is financing long term care. Many times, the elder hopes that public benefits (Medicaid) will pay for his or her long term care. Again, the approval process for public aid in each state is different, including but not limited to, asset and income limits, the effect of long term care insurance, and the effect of gifts. It is imperative to consider the rules in both the cargiver's and the elder's states when planning, especially if there is any possibility the elder will relocate to the caregiver's state. Further, there are also differences in the reach of each state's estate recovery rules, which are the rules that allow the state to recover benefits paid for care from the estate of a recipient who has passed away. Here, proper planning can ensure that benefits will be obtained as efficiently as possible and at the same time minimize the exposure of the elder's estate to recovery efforts. Consider hiring a care manager Every long distance caregiver should also seriously consider hiring a geriatric care manager in the elder's area. A geriatric care manager is a health care professional with training in gerontology, social work and nursing. In most cases, the geriatric care manager will conduct an assessment of the elder and develop an individualized care plan. In the long distance caregiving situation, the geriatric care manager will act as a liaison for the distant caregiver. overseeing the elder's care, providing a report to the caregiver at regular intervals and alerting the caregiver to any potential problems. This not only provides peace of mind for the long distance caregiver, but also guards the caregiver from claims that he or she is not conscientiously carrying out his or her duties due to the distance and/or lack of personal oversight. Even though long distance caregiving is a minefield, the wisest of caregivers knows that hiring professionals in the elder's area, the caregiver's area, or both, as the case may be, is the equivalent of employing a minesweeper. With proper planning and the advice of elder care professionals, caregivers can diffuse and/or avoid the mines and successfully navigate the minefield of long distance caregiving. Gina M. Barry is a Partner with the law firm of Bacon Wilson, P.C., Attorneys at Law. She is a member of the National Association of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Association. She concentrates her practice in the areas of Estate and Asset Protection Planning, Probate Administration and Litigation, Guardianships, Conservatorships and Residential Real Estate. Gina may be reached at (413) 781-0560 or gbarry@baconwilson.com.