Sunday, August 10, 2003

Fine Print

Get it in writing for long-term care

By Jenny Callison
Enquirer contributor

An essential piece of advice for folks going into business with family - to put everything in writing - is important also when one family member becomes a caregiver for another.

AARP estimates that more than 20 million Americans currently care for ill parents, other relatives or friends. Often, there is little or no compensation for this care, and terms of these arrangements are not spelled out. This can lead to difficulties, experts in the geriatric field say. Three common problems:

• Lack of planning to shield even modest assets can disqualify a person from needed Medicaid benefits down the road.

• If one child provides a parent's care without compensation, but the parent feels bound to divide his estate equally among offspring, the caregiver might feel exploited.

• If a caregiver's circumstances change to prevent him or her from providing further care, and other relatives aren't able to assume the responsibility, the ailing relative will suffer.

"We would encourage families to have a plan in place because circumstances can shift quickly and situations that may seem far-off or unrealistic could arise and have the potential to cause major divisions in families," said Betsy Needels, caregiver outreach developer for the Caregiver Assistance Network, a program of Catholic Social Services in Cincinnati.

A formal caregiver contract can outline the responsibilities of a caregiver, and specify the payment he will receive for services rendered and expenses. It ensures that the cost of care is paid at the time it is received and is not left for family members to wrangle over as part of a later division of assets.

• Resources for family caregivers are available through the Caregiver Assistance Network.
• CAN offers an information clearinghouse, support groups as well as a speakers bureau; although it is affiliated with Catholic Social Services, it serves people of all faiths. Oct. 29 it is sponsoring a caregivers' conference at the Cintas Center that will highlight many pertinent issues.
• Information: CAN (Catholic Social Services): 241-7745; Circle of Angels: 871-1954. Caregiver Careline: 929-4483.
• For a listing of local NAELA member attorneys, go to
"In our work with families, we recommend that they talk to an attorney to document what kinds of arrangements they are going to make, so that another family member doesn't come back later and say, 'Who gave you the authority to make this decision?' or 'Why did you get power of attorney?'" said Ingrid Fabian, director of client services with Circle of Angels, a geriatric care management agency in Hyde Park.

"Caregiver contracts are going to become more prevalent because people are maintaining family members and friends at home longer before putting them into a care facility," said Mary Ann Jacobs, a lawyer with Ritter & Randolph LLC in downtown Cincinnati and a member of the National Academy of Elder Law Attorneys (NAELA). "They serve a good purpose, at the very least, in trying to establish expectations of what the caregiver is in fact going to provide and on what terms, as opposed to leaving it as a verbal commitment."

Elizabeth D. Corr, a NAELA member who practices elder law in Mariemont, advises that a caregiver contract is a good idea even if the care-receiver still lives in his or her own home but depends on a family member to help out.

A good caregiver contract should:

• Be drafted by an attorney who specializes in elder law and who can customize the contract terms to the client's situation.

• Delineate the rights and obligations of both care-receiver and caregiver.

• Be written as soon as possible, when the care-receiver is unquestionably of sound mind.

• Specify what services are to be provided and at what cost. If the care-receiver is in the caregiver's home, expenses might well include a share of those utilities, laundry, food and housing costs.

• Fix the caregiver's compensation at a reasonable rate - comparable to what an outside party would receive for the same services, and specify reimbursement for the caregiver's out-of-pocket expenses.

"Each case is different; there is no cookie-cutter arrangement," Jacobs said.

Once the contract is in place, both parties should live up to its terms: the care-receiver should treat the family caregiver as an employee, paying the specified wage plus any employment and other taxes. Failure to pay taxes can complicate any later dealings with Medicaid, should the ailing person apply for assistance.

An elder law attorney can also advise clients on legal ways to shield assets from Medicaid means assessment, should the care-receiver ultimately need costly nursing home care. Payments for contracted services cannot be construed as gifts to the care-giving relative, but reimbursement checks without a contract to support them can.

"Medicaid rules have nothing to do with logic, rationality or common sense," NAELA member Gregory S. French, a lawyer in Paddock Hills, said. "You need to go to a lawyer who understands the ins and outs of them."

While most family caregiver situations concern adult children helping their ailing parents, caregiver contracts can also help clarify arrangements for a disabled child or sibling.

"People need to understand that money spent up-front, making sure they're doing it right, will be returned many times over," Fabian said.

Said French: "My experience has been that assisting communication among family members - getting them on the same page - is one of the most important things an attorney can do to help a family plan for this sort of situation."


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