Should seniors’ family member caretakers expect to be paid?

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Senior Moments: Should seniors’ family member caretakers expect to be paid?
By Jackie Byrd

Special to the Bowie Blade

In 1950, there were more than five times as many dependent children in households as dependent seniors. In 2050, the projection is that the ratio will be very nearly 1-1. We’re all getting older, but you knew that already. – Robert B. Fleming, elder law authority, in his new book Alive and Kicking: Legal Advice for Boomers!

Should family members expect to be paid for care they provide to ailing seniors? A typical caregiver for a senior spends at least 18 hours per week providing care: doctor visits, managing finances and providing hands-on help. Two-thirds of these caregivers also work outside the home and, of these, more than half have to make workplace adjustments: coming in late, going part-time, giving up promotions, etc.

What if family members were paid to do this? What if the care provided by family allows their loved one to stay at home, reduces the cost of long-term care (to both the senior and the government), and makes the senior’s life more comfortable and happy? Does it matter how closely the caregiver is related, or what other close family members are (or are not) doing? All these questions are posed to elder law attorneys on a regular basis. Attorney Harry Margolis of tells of a recent Nebraska case that suggests at least some partial answers.

Dorothy Corbin managed to stay in her Omaha home until the last two months of her life. According to her niece, Johnnie Murdock, that was possible at least in part because Murdock was helping with grocery shopping, running errands, transporting Corbin to appointments, taking care of her pets, and overseeing her health care and hygiene. In fact, according to Murdock, she had been providing caregiver services for Corbin for at least seven years before her death. That was why she filed a claim against Corbin’s probate estate seeking $300 per month for 97 months of assistance.

Corbin’s daughter Deborah, who had been appointed personal representative of her mother’s estate, denied the claim. The two women ended up presenting their case to the local probate judge, who took testimony from Murdock about what she had done for her aunt. Deborah Corbin did not testify; she lived in New York, and had not been actively involved in her mother’s care during her last months.

Murdock’s courtroom testimony modified her claim somewhat. Noting that a paid caregiver had been involved in Ms. Corbin’s care for the last two months of her life, and that the caregiver had received payment of $10 per hour, Murdock argued that she should be entitled to a similar wage from Ms. Corbin’s estate for the months when she was providing nearly full-time care. The probate judge agreed, finding that she had worked for 12 hours per day for some or all of the last five years of Ms. Corbin’s life. Although her earlier help might reasonably be presumed to have been voluntary, said the probate judge, the much more extensive care she provided after Ms. Corbin’s first hospitalization should be compensated under the legal theory known as quantum meruit, and he awarded her a little over $18,000 for her services.

Now a little digression from today’s main topic, courtesy of Senior Moments law school, quantum meruit can be described this way: When a person employs another to do work for him without any agreement as to his compensation, the law implies a promise from the employer to the workman that he will pay him for his services as much as he may deserve or merit.

Regardless of quantum meruit theories, the Nebraska Court of Appeals disagreed with the findings of the probate judge. The appellate court relied on another presumption in the law: that services provided to family members are intended to be gratuitous unless there is evidence that there was some other agreement. Murdock would therefore need to show that she and her aunt discussed payment. Murdock’s failure to even keep a log of hours she worked also suggested that at the time the work was done she did not think she would be paid – then or later. Not only did the appellate court reverse the compensation award, it also ruled that Murdock had not presented any evidence to support her assertion that she had contributed $250 to preparation of food, thank-you cards and rental of the local church fellowship hall for Ms. Corbin’s funeral.

Moral of the story? If you are a caregiver, put it in writing. It is first of all a good idea to keep scrupulous financial records and diaries of your activities in support of the care you provide. This is crucial for many reasons, not the least of which is when your siblings, looking for their inheritance, one day say “How could her care have cost that much?” Another idea is execution of a personal care contract between the caregiver and the care recipient. This can be for reimbursement of expenses, or for actual care as referred to above.

Thank you for reading. Stay well. See you next week.

The writer, a longtime resident of Bowie, is secretary of the Maryland/D.C. chapter of the National Academy of Elder Law Attorneys and a member of the Elder Law Section of the Maryland State Bar Association. You can e-mail her at [email protected].

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