Property Transfers to Caregivers: A Comparative Analysis

By Hofri-Winogradow, Adam; Kaplan, Richard L. | Iowa Law Review, July 2018 | Go to article overview

Property Transfers to Caregivers: A Comparative Analysis


Hofri-Winogradow, Adam, Kaplan, Richard L., Iowa Law Review


I. INTRODUCTION

Every country with an aging population faces the challenge of caring for older people who require some assistance in performing the essential activities of daily living-such as eating, bathing, getting out of bed, and toileting. This assistance is usually seen as the point of entry into the spectrum of long-term care, a range of services that begins with informal caregiving and might progress to full-time residency in a caring facility. This Article focuses exclusively on the initial stage in the long-term care continuum and examines how caregivers are compensated for their efforts. In particular, this Article addresses the dichotomous treatment of family and non-family caregivers.

Family caregivers generally receive no explicit compensation as they provide care, even though this activity is typically a significant time commitment and often imposes health risks as well as major costs on family caregivers.1 Non-family caregivers, in contrast, generally expect and receive explicit compensation as they provide the required services and stand as employees (either of the care recipient directly or through an independent agency that contracts to provide the required services). 2 This apparent discrepancy is somewhat ameliorated through testamentary transfers to family caregivers when the care recipient passes away. 3

In this Article, we examine approaches taken to property transfers to caregivers in U.S. federal law, several U.S. states, Israel, and the U.K. We review the advantages and disadvantages of the principal mechanisms for compensating family caregivers: testamentary bequests by care recipients, an explicit salary paid by care recipients, public benefits payable to the caregiver or the care recipient, and tax incentives. We also mention a potential further avenue for family caregivers to access compensation: filing claims against the care recipient's estate, using a variety of doctrinal bases. We show that the United States authorizes the payment of public benefits to family caregivers only in very restricted situations,4 the U.K. provides modest public benefits to many family caregivers,5 and Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from nonrelatives is unavailable.6 All the jurisdictions examined rely on family caregivers working for free or being compensated by the care recipients.7

Based on our comparative review, we conclude that while a publicly funded solution to family caregivers' plight may be impossible given today's increasing lifespans and limited public tolerance for taxes, benefits for family caregivers clearly need to be expanded, at least in the United States.

II. Compensating Non-Family Caregivers

Employment projections forecast that delivery of home health care and personal assistance services is likely to experience extended growth in the years ahead.8 In the United states, for example, this sector of the economy has already seen the formation of national agencies like Home Instead,9 Comfort Keepers,10 and Visiting Angels.11 These agencies maintain thousands of individual offices, operating as franchises with established prices for a widerange of skilled and non-skilled services geared toward persons requiring assistance on a more or less chronic basis.12 If anything, demand for such services is likely to expand as people live longer but have no family members to provide care13-either because they never had children or because their children live too far away or have other employment and family responsibilities that preclude their assuming the role of caregiver to their aging relatives.

The existing legal paradigm for non-family caregivers recognizes that this activity is simply a job despite the necessarily intimate aspects of personal assistance involved and the typical setting for such assistance-the personal residence of the care recipient.14 Accordingly, formal employment contracts with stipulated payment rates and benefits are the norm, often between the caregiver and home health care agencies or other third-party intermediaries rather than with the care recipient directly. …

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