Elderly Parent and Their CaregiverIt’s not easy, but you are your elderly parent’s primary caregiver. Whether you chose to do it out of love, or you were simply the only possible option, you are now responsible for your parent’s health and wellbeing. You might assume that because you are family, you don’t have to worry about potential legal challenges, but if we had a nickel for every time a client called us with a family legal conflict, we would have retired to the Gulf Coast years ago!

The reality is that even if you are the only family member in the picture, you should take some legal steps to protect not only your loved one but also yourself.

Start With a Power of Attorney

The most important document you can have as a caregiver for an elderly parent is a Power of Attorney (POA). What this document does is allow the aging person to name a representative to make decisions—both medical and financial—on their behalf if they are unable to do so because of medical or cognitive incapacity. So, for example, if you find your loved one unconscious one morning and have to call 911, you would be able to speak to their doctor and make decisions about their care in the emergency department. If your loved one develops dementia and can no longer manage paying bills, handling retirement funds, and buying what they need, you can do all of that for them as their POA agent.

It is vital that you execute a POA as soon as you become your parent’s caregiver. They might already have a form that names their spouse as their agent, but if the spouse is incapacitated or gone, that won’t help anyone. Unfortunately, your mom or dad can only sign a POA when they are of sound mind, so if you wait until they start to decline, it might be too late to legally execute the document.

Without a POA, You Might Need Guardianship

If your loved one did not sign a POA naming you as their agent before becoming incapacitated, you might not have a legal right to make decisions for them and handle their finances. In order to do that at this stage, you might need to start the process of seeking legal guardianship. In Texas, that involves petitioning the court to certify your loved one’s incapacity and then asking the court to approve you as the guardian.

If you are the only one seeking guardianship, the court should approve you as long as you pass a background check and commit to serving in your ward’s best interest. If someone else is seeking guardianship, the court will choose based on each person’s relationship to the ward, their qualifications, and the judge’s discretion. If your loved one’s estate has significant monetary resources or valuable property, you might be surprised at who comes out of the woodwork to petition for guardianship. A guardianship attorney can advocate for you during this process.

Defending Yourself Against Criminal Accusations

Sadly, even when you are acting only out of the goodness of your heart as a caregiver, you can face terrible accusations from other family members, hired caregivers, and even your parent. Some accusations to be aware of include the following:

  • Elder abuse. Even if you are accused of abuse by a parent with advanced dementia, Adult Protective Services will have to take the accusation seriously and conduct an investigation. Other accusers could include a hired helper who overhears your frustration with your parent or a sibling who disagrees with the caregiving decisions you are making. Elder abuse is a criminal charge, and you should take any accusations seriously.
  • Theft. Ideally, you have taken steps to protect yourself from accusations of theft by going through your loved one’s possessions with any other interested parties before you even start caring for them. However, if there is no Will and your parent is incapacitated, you are vulnerable to accusations of theft from disgruntled family members simply because you have access to their possessions.
  • Breach of fiduciary duty. If you are the POA agent for your loved one, you are bound by the law to act in their best interest. If a sibling or other family member thinks you are spending the parent’s money irresponsibly, they could accuse you of breach of duty. You will need an attorney to help you mount a defense.

Unfortunately, being responsible for your parent can make you a target for others who have their eye on your loved one’s money or possessions. You might assume the false claims will just go away, but that could be a fatal mistake. Talk to a defense lawyer if you have been accused of a crime.

Are You Looking for an Elder Law Attorney in Texarkana, TX?

If you are looking for Elder Law advice, you need to speak with an experienced Elder Law attorney as soon as possible. Contact us online or call our Texarkana office directly at 903.223.5653. We also have offices in Tyler, Paris, and Longview, as well as Magnolia, AR!


Ben King
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Ben King helps clients in TX and AR with estate planning, asset protection, probate, and medicaid planning.
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