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Many Americans have been providing in-home care for years without having the correct paperwork in place. Creating these documents can eliminate confusion and help ensure that everyone is on the same page. Common legal documents for caregivers include: 

  • Home Health Care Contract - This document specifies the scope of the caregiver's duties, such as which duties are required, the caregiver's authority, medications, schedules, and any details the person being cared for may not be able to communicate themselves.
  • Elder Care Authorization - An elder care authorization form grants a named caregiver temporary custody of an older adult for the purposes of providing care. It can also be called an authorization for care or elder care directive. 

If you are providing in-home care for a family member, the family member receiving care may want to sign a Durable Power of Attorney and an Advance Directive. These will document your family member's preferences and provide you with the legal authority to make important financial and medical decisions on their behalf should they become incapacitated. 

If you are hoping to get paid for your caregiver duties, whether it is through Medicaid, the Dept. of Veteran Affairs (VA), or a state program, you will need to outline the scope of your payable duties in the Home Health Care Contract. It may be helpful to ask a lawyer any questions you may have before you get started.

The specific documents that you or your family members will need to prepare before providing or receiving in-home care will vary from one situation to another, and there will be some overlap if you or another family member is providing the care.

Relevant legal documents generally include the following:

  • Power of Attorney - The Power of Attorney allows a trusted individual or entity to make crucial financial and legal decisions on behalf of another individual (called the "principal") when they are absent.
  • Durable Power of Attorney - A Durable Power of Attorney remains in effect even when the principal lacks the capacity to make financial or legal decisions for themselves, such as those who have been diagnosed with dementia.
  • Healthcare Power of Attorney - This type of Power of Attorney allows the principal to choose a trusted individual or entity to make medical decisions on their behalf if they are incapacitated. 
  • Power of Attorney for Child - If you are the parent of a child receiving care from a caregiver, this document will grant the caregiver or another person legal authority to make decisions on your and your child's behalf.
  • Advance Directive - The Advance Directive allows a person to state their preferences for healthcare services, such as declining resuscitation efforts, and end-of-life care generally. It also allows them to appoint a person who will make sure their healthcare preferences are met. 
  • Last Will and Testament - It is also important that a family member receiving care has an updated Will in place. 
  • Living Trust - A Living Trust is similar to a will, but it speeds up the process of disbursing funds from an estate if the principal dies or becomes incapacitated.
  • Special Needs Trust - This is a specific type of trust that is set up to benefit a minor or adult with a disability, known as the beneficiary. This type of trust will preserve a beneficiary's ability to receive public benefits.

Can in-home care be paid for by private insurance or public benefits?

Family caregivers incur an average of $7,242 in out-of-pocket expenses annually, according to a 2021 study by the American Association of Retired Persons (AARP). Fortunately, certain federal and state programs and private insurance can help ease this burden. Government benefits for in-home care are primarily limited to military veterans and Medicaid recipients.

Medicaid benefits for in-home care are offered through all 50 states and the District of Columbia, although coverage and eligibility requirements vary. Generally, the individual needing care is assessed by your state's Medicaid program for their specific condition(s) and needs, and a budget is made if a need is determined. Then, if qualified, a chosen family member or caregiver drafts a written service plan detailing the tasks and requirements for care.

There are four different types of military veteran benefits available for in-home care: 

  1. Veteran Directed Care. Available in most states as well as the District of Columbia and Puerto Rico, this program allows eligible veterans enrolled in the VA healthcare system to receive monthly reimbursement based on an assessment of their needs.
  2. Aid and Attendance (A&A) Benefits. This benefit is available to veterans who qualify for a VA pension and meet additional requirements related to their day-to-day needs. This is also available to surviving spouses of military veterans.
  3. Housebound Benefits. This is similar to A&A benefits in that it is available to veterans receiving a military pension and who are substantially confined to the home, but it cannot be used in conjunction with A&A benefits.
  4. Program of Comprehensive Assistance for Family Caregivers. Family members who are caregivers for veterans or service members who sustained a serious injury in the line of duty are eligible for a monthly stipend. Caregivers also have access to health insurance, training, and other benefits.

Coverage for providing in-home care through private insurance will vary from policy to policy, but typically is covered through long-term care insurance policies. However, be aware of the limits of such a policy, since not all of them cover care provided by a spouse or other family member living in the home.

What can you do if a family member is no longer competent and does not have a plan?

Although everyone ages and slows down eventually, we often put off planning for this inevitability until it is too late. If a family member is no longer competent, whether they have succumbed to dementia or sustained a debilitating injury or illness, you may be faced with wanting to help without already having a plan in place. 

Without a valid Power of Attorney in place, family members of incapacitated adults may not be authorized to act on their behalf, such as compelling them to take their medications or seek care, or manage their financial affairs. In this situation, you may need to seek legal help to get a guardianship or conservatorship.

Guardianship or conservatorship is a legal process by which family members petition the court to determine whether the individual in question is legally incompetent. If so, the court will then determine who is best suited to be the guardian.

If the court decides that you are qualified to care for them it may legally appoint you as the guardian and transfer their affairs over to you. Serving as a family member's guardian is a big responsibility that should never be taken lightly. Duties include managing their finances, determining their living arrangements, providing medical consent, making end-of-life decisions, and reporting to the court periodically.

As you can see, providing in-home care requires a substantial amount of planning, time, and effort. To learn more about the legal issues involved with in-home caregiving, reach out to a Rocket Lawyer network attorney for affordable legal advice.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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