When you need an elder law attorney

My mother has always been a planner. My father was more of the mind that we only go around once so we should make the most of it. Luckily, my mother’s views prevailed when it came to planning for elder care.

While both my parents were still in good health and working, my mother hired an elder law attorney to draw up a health care proxy, durable power of attorney and living will for her and my dad. Doctors and hospitals haven't always listened to them.  But their very existence has made my life as a caregiver a whole lot easier.

Not everyone is so lucky. Close to two thirds of the adult population in the U.S. has not documented their future health care and financial wishes, according to a 2017 study published in Human Affairs. In fact, only 38 percent had a healthcare proxy, living will or power of attorney.

Difficult choices for caregivers

So, if you’re caring for a family member who doesn’t have legal plans in place what should you do? Hire an elder law attorney who on average can charge between $200 and $500 an hour? Or do it yourself?

According to the experts, if you really can’t afford a lawyer or are unable to access other no or low-fee options, downloading a Health Care Proxy or Power of Attorney (POA) document from the internet is better than nothing.

There are dozens of sites that offer free or low cost downloads. But this type of DIY legal approach makes Taylor Burdick, a staff attorney who works for Anishinabe Legal Services, a legal aid organization in northwestern Minnesota, cringe. “The LegalZoom generation is catching up with us a little bit,” he says.

Risks of DIY legal planning

While there are many documents you can download and fill in for free or for a low cost, there can often be legal nuances that people may not understand. Frequent problems Burdick has seen include:

• Forms that have been filled out incorrectly
• Documents that aren't usable because they aren't notarized
• Documents that aren't legal in the right state

Just refilling a prescription for a loved one can be difficult without the proper paperwork in place and in the right hands — of doctors, pharmacies, hospitals, banks and more. 

Details matter

Even when you meet the legal criteria for a document like a power of attorney, there are important things to know about how to use it that you don't necessarily get from a download.

For example: "If you just sign your name, you're signing as yourself, not on behalf of your family member, says Jennifer VanderVeen, president of the National Academy of Elder Law Attorneys (NAELA). "You can be personally obligating yourself."

The right way to sign? With the letters 'POA' after your name. That way it obligates the person you're acting on behalf of. "It's the little things that getting a DIY document off of the internet just doesn't tell you," says VanderVeen.

How to find affordable legal advice

Sometimes hiring an attorney can save you a lot of time, aggravation and yes, even money in the long run. And even for elders who can't afford private attorneys, there are lots of options. You just have to know where to look. Some places to start:

• Search the National Association of Elder Law Attorney's (NAELA's) attorney locator
• Contact your local or state Agency on Aging, for example the Minnesota Board on Aging
• Reach out to a local legal aid society, such as the Minnesota Legal Services Coalition
• Check your local Bar association to see if they offer free or reduced fee consultations for elders
• Ask the hospital or nursing home social services for direction
• Seek advice from a geriatric care manager
• Call the Alzheimer's Association helpline (1-800-272-3900)