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Most of us become seriously injured or deathly ill sooner or later and depend upon other people to take care of us. We should all plan for this problem ahead of time so that our caregivers can be well prepared to do the job well. As a caregiver, knowing the ins and outs of the care giving job can make the job much easier and less stressful.

Health Care Decisions

If someone suffers a debilitating health crisis without a comprehensive estate plan, Indiana law gives equal authority to the patient’s parents, adult children, spouse, AND adult sibling to make healthcare decisions. However, Indiana law does not authorize anyone to make other decisions for an incapacitated person unless a judge gives the caregiver that authority or the incapacitated person has planned ahead with a power of attorney.


Only a minority of people plan properly for debilitating injury or illness. Most people do not establish powers of attorney to empower other to care for them in times of sickness. In these circumstances, a caregiver must petition a court for appointment as the sick or injured person’s guardian. Once a guardian is appointed, the guardian can consent to most healthcare decisions and business decisions in a fashion similar to the way a parent can consent on behalf of a young child. This process can take several days or weeks to complete and requires expensive court action. The court retains authority over the guardian and requires the guardian to give a detailed report of all activities at least every two years.

Powers of Attorney

A person can make a power of attorney that authorizes another person (the “attorney-in-fact”) to provide care and make decisions if the giver (the “grantor”) of the power of attorney loses the ability to take care of himself. The power can be effective immediately after the grantor’s signature on the power of attorney or it can be made to “spring” into effect only when the grantor becomes disabled. The power of attorney can give the attorney-in-fact almost unlimited authority, or it can provide limits and guidelines to regulate the attorney-in-fact’s activities. A power of attorney enables a disabled person’s family to manage important personal and business decisions without court involvement, but a disabled person cannot sign a power of attorney if he or she cannot clearly communicate his or her understanding of the power of attorney and the authority that the attorney-in-fact receives through it.

Caregivers Beware!

A person caring for an incapacitated person has certain rights and responsibilities. A person having a power of attorney has no obligation to use a power of attorney or act on it in any way. However, if the person uses the power of attorney, he or she must use it wisely and protect the incapacitated person faithfully. Generally, the caregiver can only use the incapacitated person’s money to take care of the incapacitated person, but some estate plans allow caregivers to make gifts to themselves in certain situations.

You should also be aware that some nursing home admission agreements make people who sign the agreements personally responsible for making sure that someone pays the nursing home bill. If the nursing home accepts Medicaid payments, the caregiver may have to apply for Medicaid benefits for the nursing home resident. If the patient qualifies for Medicaid, the nursing home must accept the payments that Medicaid allows, but if the caregiver does something that disqualifies the patient for Medicaid, the caregiver may be responsible for the resulting unpaid nursing home bill.

Caregivers should read documents carefully before signing. If you expect that the person you are serving may need nursing home care soon, you should investigate several nursing homes and ask to see copies of their admission contracts before you sign them. If any language in the agreement does not make sense to you or seems to be disagreeable, you should ask an attorney to explain it before you sign it.

Life is rarely as simple as we expect. A healthcare crisis is always a difficult situation, but skilled planning can make it less traumatic. Nursing home care may seem simple, but if you speak to people who have helped disabled family members transition to nursing home care, they will probably tell you that it pays to plan early with a knowledgeable elder law attorney.

Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation;  a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.

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