An oral care agreement between a person needing care and a family member or close friend willing to provide that care is fraught with difficulties. It usually involves an exchange of property for a promise of care and support, often a promise to "care for life". It may seem attractive to seniors who want to stay in their homes, but the arrangement can go very wrong. One of the problems is that the background of the situation is usually not expressed to the lawyer or notary public preparing the transfer, so there is no professional advice provided.
Such agreements need to be in writing and should consider the following questions:
- What if the caregiver dies, or becomes ill, and cannot look after the care recipient properly?
- Is the caregiver prepared for increased dependency of the recipient over time?
- What if the recipient lives for another thirty years? Is the caregiver prepared for that event?
- What if the care recipient becomes ill or disabled?
- What if the care recipient needs to enter a care facility? Who will make this decision: the caregiver? the care recipient? a physician?
- What if the caregiver's personal situation changes; for example, he or she gets divorced or has to move due to employment changes?
- What if the caregiver, who now owns the senior's home, goes bankrupt or the home is put under foreclosure for non-payment of the caregiver's mortgage?
Other considerations are the extent of caregiving services required and the time required to fulfill them. Seniors may be in denial with regard to their lack of capacity to perform personal care and housekeeping functions. They may wish to remain at home where it is exceedingly difficult for the caregiver to provide necessary services in a timely and safe manner.
Obtaining proper advice and putting the agreement in writing may seem unnecessary when dealing with "family." But obtaining proper tax advice and dealing with the above points in writing could well avoid expensive litigation and the significant, irreparable harm that these types of disputes bring to the family. Independent legal advice for both the senior and the caregiver should be obtained.
There have already been a number of cases in the courts where property has been transferred into the name of the caregiver and disputes have arisen. As our population ages, our seniors live longer and healthier lives, and as the government withdraws from providing services, care agreements will become an important planning tool for seniors.
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