Elderly people may come to a point in their lives where they need assistance with daily living. To cope, they may go into a senior residence, be placed in a care facility or they may obtain professional in-home care. In such cases the parties agree in advance about costs and services to be provided, and a contract is signed. These are professional care agreements in which the parties set out the terms clearly in writing. This protects the health care professional(s), the patient and the patient family.
However it is not uncommon for people to enter into private care agreements where one person (usually a friend or relative) agrees to take care of an elderly person for a period of time, or even for the rest of their life. Care might be provided in the home of the elderly person, or in the home of the caregiver. The caregiver is sometimes promised a reward? Often an elderly person will promise to give them their home, before or after death. The home may be registered immediately in the name of the caregiver, or registered in joint tenancy, or promised under a will. Private care arrangements are usually quite vague and are not put in writing. Each party may have a different understanding of what was intended, resulting in serious problems down the road. Real life examples include:
A caregiver who expected to be taken on trips as a companion? But the family objected when they discovered how much money was spent on travel.
A mother, who transferred her home to her daughter on the understanding that she could live in the basement suite, only to be evicted when there was a dispute.
A mother who transferred her home to her daughter on the understanding that she would live there until she died, but the daughter sold the home and moved to another city.
A woman who quit work to care for her stepmother, who promised to give her a share in her house under the will. The other children sold the house before the stepmother died and the woman lost her inheritance.
Failed private care agreements lead to disappointment, bitter disputes, and lawsuits Whenever possible, the expectations of seniors and their caregivers should be clarified and put in writing. This may involve hiring lawyers and negotiating the issues with care and thoughtfulness. It is important to consider contingencies that might make it difficult to perform the agreement. For example:
What if the caregiver dies before the elderly person?
What if the caregiver becomes ill or unable to perform the agreement? ?
What if the elderly person becomes so ill that he or she needs to move into a care facility?
If the caregiver believes that this would result in breaking the agreement and a loss of pay or property, the caregiver may try to keep the elderly person at home. These are only some of the issues that can arise. It is not possible to anticipate everything. But it is important to explore hopes, concerns and expectations as thoroughly as possible to help avoid future problems. All agreements should be in writing. The B.C. Law Institute has struck a committee to review private care arrangements, called the 揚roject on Legal Issues Affecting Seniors? The committee is developing proposals to deal with problems raised by private care arrangements and is considering strategies to protect both sides. This may involve passing new laws, including laws to prevent the kinds of arrangements that are most likely to cause problems.
EDITOR'S NOTE:
The purpose of this column is NOT to advise people on their legal affairs or concerns, but to provide basic information for discussion with their own legal counsel.
