Legal Forms and Finding an Elder Law Attorney

Date:

February 10, 2022

Categories:

Reading Time: 5 minutes

Legal decisions and completed legal forms not only protect the person you care for, but they also protect you, the family caregiver.

Legal documents provide guidance from an older adult about medical care they would like to receive and designates someone to make medical and financial decisions. Completion of legal forms is the only way to ensure that an older adult’s wishes are followed.

As a caregiver, you have no legal authority just because your care receiver tells you what they want.  Saying “but he/she told me what to do” does not mean anything without signed legal documents.

These forms need to be stored somewhere that you or the person you care for can get to them 24 hours a day/seven days a week.  Copies are acceptable, in most instances.  Caregivers need to have copies with them at all times.  Remember, banks with a lock box are not open all day or the entire  weekend and you may be away from home when care receiver needs you.  

Important Forms – Texas State Law Library For other states, do an internet search entering the name of your state and the name of the form.  Form titles vary by state. Contact local area agency on aging, which may have a list of elder law attorneys and those who may do pro bono work. 

  • Will: allows you to determine how your property will be distributed after you die.  There is no will template but learn about the types of wills, what you need to consider writing them, and the importance of conferring with a licensed attorney, whenever possible. See below for how to find an attorney.

  • Transfer on Death Deed: Like a will, but designed to avoid probate and Medicaid estate recovery. If someone receives long-term care services paid for by Medicaid, the state of Texas has the right to ask for some money back from the estate after the individual dies. To help pay for long-term care services, such as skilled care facilities, every state must have a Medicaid Estate Recovery Program (MERP). There is a a review period of financial records for the 60 months/5 years that Medicaid paid for long-term care services before the person died. After review, the state may or may not ask for money back.The state will never ask for more money back than it paid for Medicaid services. 

  • Statutory Durable Power of Attorney (SDPOA): This form allows you to designate someone to make financial decisions for you. 

  • Medical Power of Attorney (MPOA): This form allows you to designate someone to make medical decisions for you.  Note: This form is not what is usually known as a “living will.” See Directive to Physicians and Family or Surrogates below.

  • Directive to Physicians and Family or Surrogates – AKA a “Living Will”: This form documents your wishes in the event you are unable to make your own decisions and you suffer from a terminal or irreversible condition. This form states your wishes if you do not want extraordinary measures taken to keep you alive. Without this form, physician training, hospital, and nursing home policies often dictate the use of “heroic means” to sustain life. For example, “reviving” a very ill person after a stroke, and using a respirator for someone deemed medically “brain dead,” are standard procedures in many hospitals.

  • HIPAA authorization to disclose Protected Health Information (PHI) – HIPAA Release(Health Insurance Portability Act),  By signing of a HIPAA release form, the patient  gives permission to health professionals to talk to anyone other than the patient regarding medical-related issues.  Caregivers need to be listed on your care receiver’s medical records.  Ask for this form from physician or at the hospital.  You can use the signed HIPAA release with any doctor or in any hospital in Texas. Carry a copy of this everywhere you go and.

  • Texas Do Not Resuscitate (DNR) form – Informs emergency medical personnel that a person does not wish to receive emergency lifesaving treatment if their heart stops or if they stop breathing. This information is provided for your information only. An Out Of Hospital DNR Order is executed by a doctor and must be kept with the person at all times.  Caregivers should also carry a copy.

If you need general information on basic legal documents, you can contact your local area agency on aging by phone or online or call 211 for help in locating experienced attorneys, some forms, and other information.

Advance Directives – Documents that allow a person to state their health care treatment preferences and to designate someone who can make decisions if they should become incapacitated. A family member or other caregiver has not authority to tell health care staff the patient’s wishes without the legal authorization.  These include Directive to Physicians and Family or Surrogates ES, and Out-of-Hospital Do-Not-Resuscitate (OOH-DNR) Order.

Also see Frequently Asked Questions for Mental or Physical Disability – discusses forms listed above as well as other concerns family caregivers often have about legal issues.

Resources Use the resources listed below or contact local area agency on aging or call 211

  • Contact your local County Bar Association – ask if any of the members are elder law specialists providing pro bono (free) services, at least for a consultation.

  • Some large churches can help people find lawyers who are willing to provide limited pro bono advice to persons with low incomes.

  • Ask family and friends for recommendations of attorneys they have used. Remember, not all attorneys specialize in elder law, even if they state they specialize in probate law.

Ask questions

No matter how you find a prospective lawyer, the following questions can help you compare experience and cost:

  • How long have you been in practice?

  • Do you specialize in a particular area (e.g., estate planning or elder law)?

  • How long have you been specializing in this area?

  • What are your fees?

  • Do you offer free consultations?

  • What is the average charge for the type of consultation I need?

These discussions with the person who you care for are not easy. Emphasize that the purpose is to follow their wishes and take care of important medical, legal, and financial issues only when they are unable to do that for themselves.

Disclaimer: No documents or information provided here or anywhere on www.familycaregiversonline.net should be considered legal advice, or intended to replace a formal discussion with a licensed attorney with experience in elder law.

Thanks to attorney Greg Zambie, Texas Legal Services, for review and edits.

Edited by Zanda Hilger


We hope this information is helpful to you in the important work you do as a family caregiver.
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