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LEGAL DICTIONARY

Legal Caregiver

A legal caregiver is someone who assists another individual with personal care or household tasks that are necessary for everyday life. A legal caregiver often helps with cooking, shopping, house cleaning, driving to appointments, and managing medications.

A caregiver may tend to children, the elderly, or the disabled. Federal laws regulate the standards of conduct and the eligibility requirements of the caregiver, and state regulations can vary across the U.S.

Some government programs allow family members of people with disabilities and veterans to be paid for their work as caregivers.

If you become incapacitated without naming a legal caregiver, a family member must ask the court to appoint one for you, such as a guardianship or a conservatorship. This step can be difficult for your loved ones.

If you are facing an illness or a possibly debilitating operation, a better option is to list someone as your legal caregiver. The time to make this decision is now while you are capable of taking the appropriate legal steps in your estate planning.

You may wish to consult an attorney to draft the documents that give your caregiver the legal right to make medical and financial decisions on your behalf. Some states require that these documents be signed in front of witnesses, and some require that they be witnessed by a notary public.

A caregiver’s legal responsibilities can vary depending on the needs of the person for whom they care and what legal documents that person has prepared. However, here are the five legal documents that represent them that are most typical for legal caregivers to have.

  1. Power of attorney. Power of attorney (POA) is a tool that authorizes you to make legal and financial decisions for another individual.
  2. Advance directive. An advance directive is a document that specifies what medical care a person does and does not want to receive when they cannot make those decisions on their own.
  3. Medical Power of Attorney. A Medical Power of Attorney is a type of advance directive that gives someone the authority to make healthcare decisions (including choice of providers, medical treatments, and end-of-life care) for someone else.
  4. Living will. A living will focuses on life-support procedures and end-of-life care.
  5. Last will and testament. A last will and testament is a legal document that states how an individual wants their property and assets to be distributed after their death.

Caregiver Statutes by State

Millions of Americans are providing complex care medical or nursing tasks for their loved ones. These tasks, many of which were once performed only by medical professionals, include:

  • Giving injections
  • Managing multiple medications
  • Operating and monitoring medical equipment
  • Providing wound care
  • Preparing and managing special diets

The rights of caregivers have been challenged during the COVID-19 pandemic. For example, some nursing homes told families that essential caregivers could not visit the facilities even after vaccines and protocols were in place to help prevent the spread of the infection.

In November 2021, Texas voters approved a Texas state amendment ensuring that at least one essential caregiver would have access to nursing homes and long-term care facilities.

California, for example, has the California Family Rights Act (CFRA) provides certain rights to caregivers, such as 12 weeks of time off during a 12-month period.

The CARE (Caregiver Advise, Record, Enable) Act is now law in 43 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. The states that have not passed the CARE Act as of July 2022 are Florida, North Carolina, South Carolina, South Dakota, Vermont, Washington, and Wisconsin.

The CARE Act requires hospitals to do the following:

  • Record the family caregiver’s name on a loved one’s medical record.
  • Inform the listed caregiver when their loved one is to be discharged.
  • Provide the caregiver with instruction on the medical tasks needed for the patient

Prior to this law, caregivers were often not informed of important matters pertaining to their loved one’s healthcare.

The Importance of Caregivers in Aging America

America is aging. According to the U.S. Census Bureau, one in five Americans will be age 65 or older by 2040. That number is up from one in eight at the turn of the 21st century. The number of people age 85 and older, the group most often in need of a caregiver, will quadruple between 2000 and 2040.

These numbers demonstrate that caregivers will be very much in demand in the coming years. This means that legal rights and restrictions will need to keep up with this boom.

Helpful Resources:

Caregiver USLegal, Inc. - Law and Legal Definition

American Bar Association - Ten Legal Tips for Caregivers

DailyCaring - 5 Important Legal Documents for Caregivers

USAGov - Caregiver Support

AARP - New State Law to Help Family Caregivers

Next Step In Care - New York State's CARE Act

Caregiver California - 5 Laws in California for Family Caregivers

The Texan - New Caregiver Protections in Texas Tested by Long-Term Care Facilities Attempting Restrictions

Urban Institute - The US Population Is Aging

A legal caregiver is someone who assists another individual with personal care or household tasks that are necessary for everyday life. A legal caregiver often helps with cooking, shopping, house cleaning, driving to appointments, and managing medications.

A caregiver may tend to children, the elderly, or the disabled. Federal laws regulate the standards of conduct and the eligibility requirements of the caregiver, and state regulations can vary across the U.S.

Some government programs allow family members of people with disabilities and veterans to be paid for their work as caregivers.

If you become incapacitated without naming a legal caregiver, a family member must ask the court to appoint one for you, such as a guardianship or a conservatorship. This step can be difficult for your loved ones.

If you are facing an illness or a possibly debilitating operation, a better option is to list someone as your legal caregiver. The time to make this decision is now while you are capable of taking the appropriate legal steps in your estate planning.

You may wish to consult an attorney to draft the documents that give your caregiver the legal right to make medical and financial decisions on your behalf. Some states require that these documents be signed in front of witnesses, and some require that they be witnessed by a notary public.

A caregiver’s legal responsibilities can vary depending on the needs of the person for whom they care and what legal documents that person has prepared. However, here are the five legal documents that represent them that are most typical for legal caregivers to have.

  1. Power of attorney. Power of attorney (POA) is a tool that authorizes you to make legal and financial decisions for another individual.
  2. Advance directive. An advance directive is a document that specifies what medical care a person does and does not want to receive when they cannot make those decisions on their own.
  3. Medical Power of Attorney. A Medical Power of Attorney is a type of advance directive that gives someone the authority to make healthcare decisions (including choice of providers, medical treatments, and end-of-life care) for someone else.
  4. Living will. A living will focuses on life-support procedures and end-of-life care.
  5. Last will and testament. A last will and testament is a legal document that states how an individual wants their property and assets to be distributed after their death.

Caregiver Statutes by State

Millions of Americans are providing complex care medical or nursing tasks for their loved ones. These tasks, many of which were once performed only by medical professionals, include:

  • Giving injections
  • Managing multiple medications
  • Operating and monitoring medical equipment
  • Providing wound care
  • Preparing and managing special diets

The rights of caregivers have been challenged during the COVID-19 pandemic. For example, some nursing homes told families that essential caregivers could not visit the facilities even after vaccines and protocols were in place to help prevent the spread of the infection.

In November 2021, Texas voters approved a Texas state amendment ensuring that at least one essential caregiver would have access to nursing homes and long-term care facilities.

California, for example, has the California Family Rights Act (CFRA) provides certain rights to caregivers, such as 12 weeks of time off during a 12-month period.

The CARE (Caregiver Advise, Record, Enable) Act is now law in 43 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. The states that have not passed the CARE Act as of July 2022 are Florida, North Carolina, South Carolina, South Dakota, Vermont, Washington, and Wisconsin.

The CARE Act requires hospitals to do the following:

  • Record the family caregiver’s name on a loved one’s medical record.
  • Inform the listed caregiver when their loved one is to be discharged.
  • Provide the caregiver with instruction on the medical tasks needed for the patient

Prior to this law, caregivers were often not informed of important matters pertaining to their loved one’s healthcare.

The Importance of Caregivers in Aging America

America is aging. According to the U.S. Census Bureau, one in five Americans will be age 65 or older by 2040. That number is up from one in eight at the turn of the 21st century. The number of people age 85 and older, the group most often in need of a caregiver, will quadruple between 2000 and 2040.

These numbers demonstrate that caregivers will be very much in demand in the coming years. This means that legal rights and restrictions will need to keep up with this boom.

Helpful Resources:

Caregiver USLegal, Inc. - Law and Legal Definition

American Bar Association - Ten Legal Tips for Caregivers

DailyCaring - 5 Important Legal Documents for Caregivers

USAGov - Caregiver Support

AARP - New State Law to Help Family Caregivers

Next Step In Care - New York State's CARE Act

Caregiver California - 5 Laws in California for Family Caregivers

The Texan - New Caregiver Protections in Texas Tested by Long-Term Care Facilities Attempting Restrictions

Urban Institute - The US Population Is Aging