Family Caregiver Agreement: Legal Considerations

Dorothy has been living alone since her husband passed away. Soon, her adult son Damien noticed she didn’t have enough clean clothes, that her fridge was empty, and that she had fallen a few times. 

It was obvious to her son that if Dorothy were going to stay at home, she would need help. Damien was willing to move in and care for Dorothy, but he would have to sell his house and quit his job, lose employment benefits, and put his career on hold. However, if he could be paid for Dorothy’s care, that would ease the sacrifice considerably.

Paying an adult child or a friend to care for an elder can work well for many people in Dorothy’s and Damien’s situation. However, there are potential pitfalls. These include family conflict, public benefits complications, and tax concerns. All these can be minimized or avoided entirely by putting the employment agreement in writing, just like for any job. A well-considered written contract is a must for the following reasons.

Avoiding family strife

Making a contract will help other family members understand who provides care, what that care will be, and how much money changes hands. It is fair to compensate Damien for his efforts but also to show the agreement to Damien’s siblings. Their inheritances will be affected by payments to Damien, and they may not be aware of Dorothy’s care needs.

Tax considerations

Damien’s remuneration should be treated as income on which he pays taxes. If so, public-assistance programs will understand that he received that money as a quid pro quo for work done and not as a gift (see below). Dorothy should provide him with a Form 1099 and Damien should report the income on his tax return.

Planning for public benefits

If Dorothy’s condition worsens and she eventually needs long-term nursing-home care, she may need help from Medicaid or Veterans’ programs to pay for the staggering costs of that care. However, if Dorothy has simply given money to Damien for taking care of her, those assistance-programs may choose to interpret the payments as gifts to Damien and she may be penalized, potentially heavily. To avoid that needlessly costly result, Damien’s compensation must be shown to be a salary and not a gift. A written care agreement, and proper maintenance of logs and records, will accomplish that goal.

A written care agreement should contain the following specifics:

• A detailed description of the care provided.
  • transportation
  • running errands
  • food purchase and preparation
  • laundry
  • bathing
  • bill payment and checkbook balancing
  • house cleaning and maintenance
  • fees for adult day-care
  • recreation

• The caregiver must keep a detailed running log of services provided, the amount to be paid, and how often. The amount should be comparable to the cost of professionally offered services. The agreement should also allow for reimbursement to the caregiver for out-of-pocket expenses, which also must be logged.

• How long will the agreement be in effect – a year or two? Over the person’s lifetime? 

• How the agreement may be terminated. 
• Provision for a “back-up” caregiver, if the primary caregiver were to become ill or need a break.

Can you write your family caregiver agreement?

Perhaps if your situation is not complex and you are unconcerned about the potential impact of the arrangement on benefits entitlements. However, it is always a good idea to get an experienced elder law attorney to review your document. The safer course is to let the elder law attorney write the agreement in the first place.