Family caregivers should be sure to have in place legal documents important to the lifelong care of the elder. These include a Durable Power of Attorney (DPOA), a Health Care Proxy and — depending on the elder’s wishes — a Do Not Resuscitate (DNR) order.

These documents are particularly important because if there is no DPOA and Health Care Proxy, and it develops that an elder lacks capacity to make financial or health care decision, then a Guardianship (over the person) or Conservatorship (over finances only) may need to be established by a court proceeding. This can be an expensive and complex legal process at a time when the elder and family face a medical or situational crisis. It is a problem you do not want to have.

The following information is designed to provide a basic introduction to the documents that you should have available, but it is NOT intended to substitute for professional legal advice.

A Durable Power of Attorney is a document that grants a person or persons (called "Attorney-in-fact") the legal powers to perform on behalf of the elder "Grantor" certain acts and functions specifically outlined in the document. This power is effective immediately and continues to be effective even if the Grantor becomes disabled or incompetent. The powers usually granted can include real estate, banking and financial transactions, personal and family maintenance, government benefits, estate trust and beneficiary transactions.

The identification of the Attorney-in-fact should be carefully considered and professional advice used for the preparation of documents such as the DPOA as they must meet certain legal requirements in order to be recognized by the appropriate institutions.

All adults, certainly both you and the elders in your care, should have a health care proxy to deal with the possibility of an accident or illness that would make it impossible to communicate choices concerning treatment.

A health care proxy is a legal document that allows you to name a person (called a health care agent) to make health care decisions for you in the event that you are not able to do so for yourself. This document takes effect only if your physician has determined in writing that you lack the capacity to make or communicate health care decisions.

Any competent adult (18 or older) may serve as a health care agent, except the operator, administrator, or employee of a facility where you are a patient at the time you complete the health care proxy form — UNLESS that person is related to you by blood, marriage, or adoption.

Acting with your authority, your Agent can make any health care decision that you could, if you were able, and has the legal right to get any information, including confidential medical information, necessary to make informed decisions for you.

Massachusetts is one of three states that recognize the Health Care Proxy (HCP) as the basis for health care decisions and not Living Wills. If the elder has a Living Will from another state, a valid Health Care Proxy must also be in place. If the elder travels a lot, or resides part of the year in another state, both the Health Care Proxy and a Living Will/Durable Power of Attorney for Health Care should be prepared.

There are many ways to get a health care proxy form:

You can request one from your attorney although you do not need an attorney to complete it.

You can request a copy from the Executive Office of Elder Affairs by enclosing a self-addressed stamped envelope with your request to Elder Affairs/Health Care Proxy Form, 1 Ashburton Place, 5th Floor, Boston, MA 02138.

You can print a PDF of the form from the Massachusetts Medical Society website at Massachusetts Medical Society.

You can send a request with $6.00 (six dollars) for two forms and a complete instruction packet to non-profit Massachusetts Health Decisions, P.O. Box 417, Sharon, MA 02067.

Any hospital, skilled nursing facility, hospice or home health agency providing medical care or home care must offer you the opportunity to complete a health care proxy.

Once a health care proxy is completed and an agent identified, the next step should be to discuss the elder's health care wishes so that the agent will know how to frame decisions on her/his behalf. This can be a difficult discussion to have with loved ones, but there are several excellent on-line resources available to facilitate the discussion, and to provide information on documents — various kinds of Advance Directives or Living Wills — that can effectively convey the elder's intent. For more information about advance directives, go to the Medline website (a service of the National Library of Medicine and the National Institutes of Health) NIH-Medlineplus. Or visit the U.S. Living Will Registry at Living Will Registry.

If an elder does not want to have cardiopulmonary resuscitation (CPR), a valid Comfort Care-Do Not Resuscitate (DNR) Order should be prepared and made part of her/his medical record. It is also ESSENTIAL to keep a DNR Order Verification form with the person at all times. This form verifies that there is valid DNR order in that person's medical record and allows medical personnel, such as EMTs and paramedics, to provide care and transport in the community without defibrillation and intubation. This form is available at doctor's offices, hospitals and nursing homes and is signed by a doctor/nurse practitioner or physician assistant and by the individual or health care agent or representative. Mass.Gov > Comfortcare.

It is important to be sure that elders have the documents necessary to carry out their wishes after death. These include a properly drafted and up to date Will, and also, depending on the circumstances, Trusts that accomplish desired financial, estate, and legacy control and distribution. Even with estates that have no great complication, it is generally wise to have the help of an attorney in preparing these documents to be sure that they accomplish what the elder intends.

Finding a lawyer who specializes in legal planning for elders is an important first step in evaluating legal needs. The National Academy of Elder Law Attorneys website offers a guide to help prepare for discussing your needs. Go to National Academy of Elder Law Attorneys [NAELA]. Public > Questions & Answers When Looking For an Elder Law Attorney, or call 520-881-4005, to request a copy.

In Massachusetts, legal information and assistance is available to persons over age 60 without cost by the legal services organizations below. Legal assistance is also provided through some ASAPs (Aging Service Access Points) that have contracts with the organizations identified below to assist elders in their service area. These organizations encourage elders with financial resources to secure private counsel if they require more than basic legal information.

AdvoGuard, Inc.: A non-profit MA organization that works with courts, hospitals and legal and health professionals to provide guardianship services for elderly, disabled, and indigent persons who are no longer able to care for themselves. AdvoGuard, Inc., or call 781-982-1577.

Boston Bar Association Volunteer Lawyers for the Elderly Project (VLEP) provides legal representation in civil matters to the indigent elderly of Boston. Call 617-423-0648 or go to: Volunteer Lawyers for the Elderly Project (VLEP). VLEP also supports the Legal Advocacy and Resource Center (LARC) which operates a hotline to screen and refer clients to appropriate legal and social services and/or advice clients when services are not available or necessary. (800-342-LAWS. See the website for assistance on specific issues: LARCMA.ORG.)

Greater Boston Legal Services The Elder Law Unit of GBLS provides legal assistance to elders (age 60 and older) regardless of income for:

   Housing - including eviction defense;
   Nursing home issues — including transfer and discharge;
   Benefits issues — including Social Security, SSI (Supplemental Security Income), and veterans benefits;
   Access to health care — including MassHealth; loss of food stamps;
   Consumer issues — advise for dealing with credit card debt;
   Elder abuse — including defense against guardianships and conservatorships.

The Elder Law Unit also provides advice referrals on other issues, and assists elderly legal immigrants who are losing their SSI and food stamp benefits, and the Medicare Advocacy Project of GBLS assists elders and persons with disabilities in securing full coverage under Medicare.

For more information go to GBLS > Types of Service, or call: 617-371-1234, TDD: 617-371-1228, Toll-Free: 800-323-3205. Cambridge/Somerville Office: 617-603-2700, TDD: 617-494-1757.

Legal Assistance Corporation of Central Massachusetts — Provides free legal counseling to elders (60 years of age and older) with economic and social needs. Counseling is provided for public benefits, housing, health care, protective services, and nursing home issues. Live Justice.Org, 800-649-3718, Worcester Office: 508-752-3718. Southbridge Office: 508-765-9290. TTY 508-755-3260.

Legal Assistance Programs for the Elderly
The Executive Office of Elder Affairs (Elder Affairs) and Area Agencies on Aging (AAA) administer federal funding to eleven legal assistance programs for the elderly. These programs provide free legal assistance to people sixty years of age and older in civil matters, prioritizing those elders in the greatest economic and social need. 800-AGE-INFO- (800-243-4636) toll-free nationwide, (TTY Toll Free: 800-872-0166 within MA only.)

Each Legal Assistance office establishes its case priorities with its Area Agency on Aging. However, the following types of cases are generally handled on behalf of elderly clients:

    Denials or terminations of government benefits such as Medicaid;
    Social Security, SSI, and Veteran's Benefits;
    Tenant's rights issues including defense against eviction
    Denials of applications to public and subsidized housing;
    Defense against unwarranted guardianships or conservatorships;
    Nursing home residents' rights

Visit the website at AGEINFO.COM or E-mail: 800AgeINfo@umassmed.edu.

Massachusetts Attorney General's Elder Hotline: Staffed by senior volunteers, it provides mediation services, information and referrals on legal issues. Visit the website Attorney General's Office-MA > Elders > Elder Hotline, or call 888-AG-ELDER (888-243-5337), TTY: 617-727-4765.

Massachusetts Justice Project, Volunteer Lawyer Service — Provides advice and referral on issues related to poverty law, housing, domestic relations, benefits, bankruptcy/foreclosure, and education. Neighborhood Law. Org, Toll-free 888-427-8989 or 508-831-9888 (508-831-4210 TDD.)

Massachusetts Legal Help is a website (Mass Legal Help) with links to many types of legal services available in the state. Navigate by clicking the Find Legal Aid button to search by community or resource. The links will take you to each organization's website to determine if they provide assistance with elder, family, disability, healthcare, Medicare, Social Security and other areas of concern to elders and caregivers.

Western MA Legal Services: Serves residents of town and cities in Berkshire, Franklin, Hampden and Hampshire Counties. Its Elder Law Project provides legal assistance with benefits, housing, family law, SSI disability, guardianships, conservatorships, powers of attorney and health care proxies, and assists elders and persons with disabilities as part of the statewide Medicare Advocacy Project. Western Mass Legal Services, or call 800-639-1109.

If you are not eligible for the services above, and can afford to hire a lawyer, it can still be a challenge to find someone with the appropriate expertise. Here is a website to help you search for a lawyer in Massachusetts.

The Massachusetts Chapter of the National Academy of Elder Law Attorneys website allows you to search for an elder law specialist near you: National Academy of Elder Law Attorneys > General Public > Find an Elder Law Attorney > search the Mass NAELA database. Enter your zip code, and click on listings of each attorney for contact information. Or you can call the Massachusetts chapter at 617-566-5640.

Whether or not you can get free legal advice or need to pay for it yourself, there are a number of organizations that can provide you with additional information on the legal issues faced by elders and their family caregivers.

National Senior Citizens Law Center focuses on the legal needs of poor and vulnerable elders and persons with disabilities, National Senior Citizens Law Center, 202-289-6976.

National Association of Social Security Claimants Representative provides representation and advocacy for people seeking Social Security and Supplemental Security Income. National Association of Social Security Claimants Representative, 800-431-2804.

AARP Legal Information and Legal Services Network: the AARP website offers information on legal concerns for caregivers and elders. the AARP Legal Services Network also provides a free initial legal consultation to its members and access to affordable legal assistance, AARP-Legal.

American Bar Association Commission on Law and Aging: Its "Legal Guide for Older Americans" and other useful publications and tool for making health care decisions are available for free online. Print versions can be ordered American Bar Association-Legal Guide-Older Americans, 740 15th Street, N.W. Washington, D.C. 20005-1022, or call 202-662-8690.

Alzheimer's Association: the Massachusetts chapter provides seminars on legal issues for families dealing with Alzheimer's disease, and provides referrals to experienced attorneys. Alzheimer's Association.