Academic journal article Generations

Into the Matrix of Law and Caregiving

Academic journal article Generations

Into the Matrix of Law and Caregiving

Article excerpt

Among the challenges faced by family caregivers is a tangled matrix of legal and financial issues that surround the practical care issues these caregivers cope with daily. The legal face of everyday caregiving can seem distant, obscure, or discomfiting. But, the key legal challenges are identifiable and manageable when one understands the basics.

Consider the following story.

Ann works full time as a clerk at a local grocery store chain, and in much of her free time, cares for her mother and father, with whom she shares a two-bedroom apartment. Ann has one sibling, a brother who lives several hours away. Ann's father has been diagnosed with Alzheimer's Disease, but he is still able to recognize his loved ones most of the time, engage in simple conversation, and perform most daily activities, with some cueing. Her mother suffers from severe arthritis and emphysema and cannot handle most housework, but still adequately manages the couple's finances. While at work, Ann receives a call from her neighbor: Her mother has had a fall in the apartment building's lobby. The neighbor called 911 and Ann's mother has been rushed to the hospital.

Hospital records noted that Ann's mother is married, so when Ann arrives at the hospital, staff share only general information with her and ask how to contact her father. Upon explaining her father's condition, hospital staff become somewhat more forthcoming. Treated for a broken hip, her mother is eventually transferred to a nursing home for convalescence. During this time, Ann takes extra, unpaid time off (begrudgingly provided by her employer) to care for her father and to manage her mother's transfer to a nursing home, which is a considerable distance from home.

During his wife's absence, Ann's father becomes significantly more confused, agitated, and begins to wander. Ann recruits a neighbor to visit and keep an eye on her father a couple days a week, but one day, when no one is available to monitor him, Ann locks him in the apartment for his own safety while she is at work. When Ann's mother returns home after four weeks, she is very frail physically and, though still fairly mentally capable, needs Ann's help with virtually all household management and personal care tasks, including managing finances. Ann pays bills by writing checks from her parents' bank accounts, on which they had her named as a joint owner. Ann also uses her personal bank account to pay some expenses, but because they are all one household, Ann tends to use the accounts interchangeably.

As Ann is adapting to this new care routine for her parents, she is suddenly fired from her job, because her supervisor assesses her performance as "lackadaisical" and "less competent and committed" to her work than is necessary for employment. In discussing what to do next with her mother, her mother insists that they pay Ann for her caregiving because it is so timeconsuming, and it is unfair to expect Ann to forego employment. They agree that Ann will be paid $2,000 per month. Some weeks later, her brother calls, concerned about their parents' status. After an emotionally volatile conversation, he accuses Ann of taking financial advantage of their parents, and insists that both parents need to be in a residential care facility.

The predicament faced by Ann and her parents raises questions about appropriate access to support services, caregiver stress, financial management, and quality of care. But it also raises several legal conundrums and risks that can and should be addressed. This article discusses eight key law-related issues affecting family caregivers: decisional capacity; surrogate decision-making; caregiver access to health information; abuse and neglect risks; designating a financial decisionmaker; designating a healthcare decision-maker; family responsibilities discrimination by employers; and, use of personal care agreements to pay family caregivers.

Decisional Capacity

Ann is facing issues regarding her parents' capacity to make decisions for themselves. …

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