I am Power of Attorney for my grandmother. Do I need to apply for guardianship or conservatorship in order to qualify for FMLA?

Question

I am Power of Attorney for my grandmother. Do I need to apply for guardianship or conservatorship in order to qualify for FMLA?

Follow

Share

How do I about getting guardianship and conservatorship? I'm being told at work that's what I need in order to qualify for FMLA Just to take grandma to the the doctor. I'm already durable power of attorney. Is this true?

Power of Attorney (POA)

This question has been closed for answers. Ask a New Question.

17 Answers

Most
Helpful Newest
First Oldest
First

I can't imagine why you would need guardianship to qualify for family leave. Family leave, whether it's for maternity or elder care, should be available to you if a member of your family needs you.

Getting guardianship is time consuming and expensive and unless the person is proven to need this, you may not get it anyway. I would talk with an elder attorney about this issue if you go this route.

I think you also need to check the rules, maybe even through an attorney, about FMLA. I am not an expert on this, but I've never heard that you need to be the guardian in order to take leave.

Please keep us posted as what you find out will help others.
Carol

Helpful Answer (0)

Report

msmiley, if I am reading your situation correctly, what your employer should have told you is that under FMLA, a grandparent does not qualify as an "immediate family member." Under FMLA, only a spouse, a parent, or a child qualify if seriously ill as medically verified by the treating physician. I agree with Carol that before you choose to go that route, you may want to check with an elder attorney. I would aslo recommend that you ask your employer to demonstrate how, under their FMLA policy and procedure, guardianship of a grandparent would somehow qualify you under FMLA since guardianship will not change the nature of the relationship. Be sure your employer has something written into their current FMLA policy that specifically addresses how they might choose to view guardianship of a grandparent as a qualifying FMLA event. If it is not in writing, I, personally would not trust that the employer would honor proof of guardianship even if I were able to present it. If presented and they don't have it in writing, they can still stick to the fact that the FMLA does not apply to grandparents who are seriously ill. Another thing to consider is that your employer's FMLA policy may be more generous than federal law governing FMLA. For example, their policy may cite other degrees of relation that they will consider to be "immediate" family members, such as anyone who resides in the employee's home, in which case, that may be why they suggested you present proof of guardianship-- assuming of course that they really are trying to help you qualify for their FMLA policy terms and conditions. Good luck!

Helpful Answer (0)

Report

All good thoughts, Sunshinecaregiver. Thank you for your help.
Carol

Helpful Answer (0)

Report

Just a thought, but what is your relationship with your employer? I can't tell whether your employer's HR person is being helpful, or being bureaucratic. Assuming that you have a good relationship with your employer, find someone internally to work with you and the HR dept to sort it out. Since FLMA generally pays 60% or so of the average salary, you might point that out during the discussion.

Everyone has someone they will be caring for at some point, so if you can find a supervisor or manager to champion your request, it might be simpler than going through the enormous amount of paperwork required for guardianship; especially as there is no guaratee that that will qualify you.

Helpful Answer (0)

Report

Thanks for the replies. I do consider that I have a good relationship with the employer. Under our former employer, my supervisor told me this. Now that we work for a new employer, I'm not sure how they are on the fmla. It's a very young company. I will be finding out more and keep you all updated on this.

Helpful Answer (0)

Report

I'd love an employer who pays anything for familiy leave. My understanding (and I may be wrong) is that they aren't required to pay and that it is unpaid leave. The protection is that they can't fire you for taking it. Annlidiot is so wise on many things and she may know more than I do on this. I'm just putting out my thoughts so that every angle is considered.

Having a great relationship with your employer is a huge plus and that may make the difference here.

Any thoughts caregiverssunshine? You have background on this.
Carol

Helpful Answer (0)

Report

Annlidiot, you are so on target about the realtionship one has with one's employer and whether human resources or one's supervisor chooses to be bureacratic, or not.

The only thing I am confused about, Ann, is where you suggest that FMLA is approximately 60 percent replacement pay while on leave.

If there is any pay to earned while on and approved FML it is limited to accrued hours that the employee has on the books prior to starting FML. The employee is required to exhaust accrued leave prior to being placed in unpaid leave status.

All I could think of when you mentioned the 60 percent replacement pay is that maybe you know of an employer that has an internal policy and/or practice that supplements an employee's income if the employee has exhausted all leave and is about to go into unpaid leave under FMLA? Is that what you might be referring to, perhaps, Ann? Sure would be nice of any company if they are doing that as under the FMLA replacement pay is not required.

Like Carol, my understanding of how FMLA is generally administered by employers is that there is no replacement pay other than one's own leave balances, if one has leave balances available to use. Otherwise, unpaid leave up to the 12-week max all the way. I welcome hearing from you, Ann, regarding how it works when you have seen the 60 percent replacement. Sounds like there may be a creative and compassionate employer out there, which is great news for some employees, at least.

Helpful Answer (0)

Report

You are most welcome, mismiley. New companies sometimes feel their way on various employment laws, too, so don't be surprised if they are unsure. Hope it all works in a way that will make your life and work balance easier, rather than needlessly complicated. Caregiving is a lot to manage without adding nuisance details like the situation you have described. Looking forward to hearing from you again. Hugs.

Helpful Answer (0)

Report

As I read the question, the need for FMLA is rooted in "taking grandma to the doctor" - which I take to mean an ongoing schedule that will require time off of work, but the amount of consecutive days needed were not specified.

FMLA has a provision whereby accrued (paid) vacation, holiday and vacation time can be used in those circumstances when you are taking off for care. In addition, any time taken that is covered by FMLA has a continuation of benefits. In many cases these benefits (medical, dental, life, pension, etc) are wholly or partially paid for by the employer. The employer is required to continue those payments and make arrangements for any co-pay with the employee.

As far as the 60% figure as a ballpark reimbursement # for FMLA cost, when you factor in using accrued paid time off and the value of continuation of benefits it works out as an average of the usual salary. Surprisingly some employers still have programs where they do allow a sliding scale of days to weeks of paid emergency / maternity leave after being with the company for a set amount of time.

It is worth talking to your employer about. It seems to me that as life gets more complicated in the 21st century, we all need to have something put aside to tide us over those times when we can't work or have to take time off due to caregiving. Just like people fought for maternity leave, we should be asking for parity - if the company regularly lets people leave for the kid's doctor appointment or soccer game, then it should be the same for those of us who care for an elder. Telecommuting should also be an option that we can ask for - - certainly the cost to recruit, hire and train a new work is more than accomodating a good employee who is concientious enough to care about a family member

Helpful Answer (0)

Report

i was once on a fmla . all i had to do was to get my fathers doctor to write a statement that he requires 24-7 care and that he is ill .
i was on fmla for 6 mos and had to decided what to do , go back to work or quit , of course i quit cuz dad still needed 24 -7 care .
sounds like you have a good job there and i would hang on toit , i threw away my 10 yrs of job to care for dad .
it is alot of work and alo t of heart aches . i woke up this morning felt like i been hit by a semi . thin k about it ,, youre a granddaughter and u better just hang on to ur job , job s are hard to find nowdays ...let your parents worry about gma and what to do about it .

Helpful Answer (0)

Report

lhardebeck, your wisdom in encouraging missmiley to let her parents worry about long-term care arrangements for their parents is wise. Like you, I chose caregiving to my parent over my career. While I have no regrets, in this economy, lhardebeck's first-hand advice to any grandchild is a real gem, in my opinion. If your parents are alive, missmiley, and competent to make decisions about their parents LTC, and you feel it is the right thing to do, let them know that you need to hold onto your job and livelihood. Your parents have tough decisions to make. Don't let them off the hook if they are alive and mentally competent. Younger generations already have a whole lot to care about without adding direct care and guardianship headaches to the mix, don't you think? All input aside, you will make the best decision possible, and I am rooting for your success.

Helpful Answer (0)

Report

Thanks for responding, Annlidiot.

Helpful Answer (0)

Report

I am no expert on FLMA, but I thought that it is 12 weeks of unpaid, job protected leave, and sometimes an employer requires that you use up your paid leave for FLMA leave. And I thought that it was to care for the employee's spouse, son/daughter, or parent. I noted someone said you may get 60% of your pay, you should check, I don't think it is paid leave, it just allows you to take needed time off to care for someone who can't care for themselves, or if you are too sick to perform your job, and then allows you to return to your job. I would talk to your HR department. Good luck.

Helpful Answer (0)

Report

while i was on fmla i didnt get paid . but they did give me my vacation paid when that came , they gave me 12 wks off and turn around gave me more time off with lay off cuz they didnt want to lose me . ended up begin 6 mos . well they did lose me cuz i wasnt about to put pa in no nursing home .
i didnt think he had that much time left but he did and still kickin . so its all meants to be , stay home and take care of my ole pa . bless his heart ,,

Helpful Answer (0)

Report

I would like to warn anyone who is told to get guardianship that already has Durable Power of Attorney. If your loved one develops dementia or a mental illness that requires hospitalization in a psychiatric unit, you will NOT be able to sign them in with guardianship. There is much confusion in the public about this but please do your research if you don't believe me. Durable Power of Attorney IS able to sign someone in to the psychiatric unit of most hospitals. It is a decision that is hospital specific but it is not a choice with guardianship. And please note that 80% of those who become afflicted with dementia will develop behavioral disturbances or disturbance of mood and many times will need inpatient treatment.

Helpful Answer (0)

Report

I should clarify on FMLA -
1. It is unpaid leave unless a company has a benefits program
2. It does require the employer to continue paying in their contribution to your medical, health and any other bene you have
3. Some have supplemental programs like Aflac where you can be paid
4. It always pays to check with your employer - some (although it is changing) have older programs in place for true family emergencies - which was the norm back in the days of full pensions and tutition reimbursement.

It pays to check and ask them for help - knowing the law is one thing, having the HR dept work with you on your individual issue may take more time, but may yield additonal benefits. Remember - you can also ask about telecommuting from home, flex hours, and compressed work-weeks as well as part-time status temporarily.

Good luck - I've learned nothing is ever written in stone. It pays to ask.

Helpful Answer (0)

Report

Well, my boss came by yesterday and told me that I could take the day off had no problem with it since I wasn't doing any projects. I'm a janitor in a factory. but I'm still looking into it further with our HR department.

Helpful Answer (0)

Report

This question has been closed for answers. Ask a New Question.

I am Power of Attorney for my grandmother. Do I need to apply for guardianship or conservatorship in order to qualify for FMLA?

17 Answers

Recent Questions

Popular Questions

Related Questions