There may come a time in some people’s lives when they are no longer independent in daily living activities and need assistance. This may be help for relatively minor tasks such as shopping or providing transportation for medical visits or other activities, or it may mean that they require extensive in-home assistance, or possibly eventual relocation to an assisted living facility or nursing home. If this is happening with a parent or other loved one, then a family discussion may be needed to figure out how to deal with the situation. It is often recommended in such circumstances to draft a caregiving agreement if a family member or close companion is to move in with the individual or vice versa.

Caregiving agreements are contracts with family members that address important issues facing your loved one. This includes medical, financial, insurance, residential, transportation, diet, hygiene, handling of assets, and others. Before drafting such an agreement, you should first have at least one conference with all involved family members. If your loved one is still capable, then fully advising them of your plans is essential. In some cases, this may take some convincing.

As we age, our health and cognition experience decline in varying degrees. If you notice that your parent is struggling with memory, recognition, walking, driving, dressing. or routine areas of daily activities, then an examination and a diagnosis may be needed from your parent’s medical provider as well as from a psychiatrist or neurologist. You might also consider talking to a geriatric care manager or social worker who specializes in elder care and can make an individual assessment of your loved one’s needs. With a diagnosis and other reports, you have a much clearer idea of what direction or steps to take.

All siblings should be consulted and involved.  Discuss what is observed regarding to your parent on a daily basis so a candid perspective on how your loved one is coping with declining health or cognitive functions can be determined.  Families are composed of individuals with differing views and experiences with a parent or other loved one.

Family members have different skills and capabilities and their feelings toward a loved one may be very different from one another. One sibling may be very responsible and want to take charge; another may have been branded as selfish, needy, irresponsible or uncaring. In some cases, siblings have had little contact over the years but may well have substantially different personalities than what they were like in their teens or 20s.

Take all of this into consideration when scheduling a conference. Let all attendees be aware of the most current diagnosis of your loved one, his or her living situation, and why this meeting is necessary for the future well-being of this individual. If someone is unable to be present at the conference, make arrangements to have them call in or be present via FaceTime or Skype. Before the meeting, send copies of your loved one’s diagnosis, medical and psychological reports, as well as recommendations you obtained from the social worker or geriatric manager.

Your discussion should be open but have an agenda to keep things focused. Your agenda might include:

–  Thoughts on the diagnosis and other reports

–  What your loved one needs right now–help with shopping, transportation, taking care of bills, cleaning, bathing, dressing, eating, and being monitored, etc.

–  Finances–is there a source of income such as Social Security, SSI, retirement, or an annuity. Should she or he be on Social Security Disability?

–  Residential–if your loved one needs in-home care or is a nursing home a possibility?

–  Will a family member or a qualified and bonded outside home-health agency act as caregiver and, if so, should the person be paid a salary or is the home-health agency hourly rate affordable?

–  What family members are willing to contribute to the loved one’s care and to the caregiver’s salary/costs?

–  If tasks or caregiving duties are to be divided up, who will be responsible?

–  Does someone need to be appointed as the Heath Care Proxy Agent to take care of your loved medical needs? Does someone need to be appointed as the a Durable Power of Attorney to take of the loved one’s finances? What other legal matters need to be addressed?

–  How are the loved one’s assets to be handled? Should a trust be set up?

It is best if you concentrate on what your loved one needs as well as what will make them happy. However, keep in mind that if your parent is irascible, moody, or complains incessantly, then trying to make him or happy is usually an exercise in futility.

Come to a consensus on what steps to take, which might include having you or another family member move in with your loved one or spending several hours a day with them to make sure that the home is clean, that meals are being prepared and eaten, that medications are being taken, and any other necessary needs are taken care of.   Alternatively, it might include having your loved one move in with you or another family member.

Be sure to keep comprehensive notes as you will want to draft a caregiver’s agreement once there is agreement on what is to be done. If necessary, have a follow-up meeting to finalize things.

The Caregiver’s Agreement

If whoever agrees to become the caregiver, then a written agreement is absolutely necessary. This is a huge responsibility that could mean a leave of absence from work or even giving up a career. In any event, it becomes a job and it needs to be handled as such. If the caretaker is receiving an income, then there are obviously tax implications.

The Caregiver’s Agreement is an employment contract. It should include the following provisions:

1. Start and end date–the Start date can be for a date in the future commencing upon the beginning of the caregiving and the end date can be for a specific period of time or run indefinitely.

2. List the services to be provided–be sure that you are capable or up to handling all these tasks or have a provision that delegates it to someone else. Tasks can include cooking, cleaning, shopping, laundry, transportation, bathing, exercising, administering medication. You might want to consider retaining a geriatric care manager or social worker to assess the needs of your loved and suggest assistive devices, changes in the residence to accommodate your loved one, and if other services may be needed.

3.  Compensation and taxes–you can research what caretakers generally make in your community. You might want to hire an accounting service to counsel the caretaker on tax implications as well as to handle payroll, deductions, and to keep a record of all expenses that the caretaker should provide each month. Arrive at a consensus on compensation and how it is to be paid and who will be contributing to it. Your loved one may be able to pay the caretaker out of his or her retirement funds, social security, SSI, or other income sources.

4.  Vacations and respite periods. No one should work 24/7. Outline what days or hours the caretaker can be absent and who will take over to provide a temporary caretaker.

5.  Require the caretaker to record all expenses and retain all receipts . Notes should be taken to list what tasks were done that day. These notes are needed in case your loved one applies for Medicaid (MassHealth).

6.  Provide for a legal plan–estate planning is essential. Meet with an elder law attorney to review your loved one’s current estate plan, to prepare the Caregiver Agreement in accordance with the current case laws and MassHealth regulations, and to make suggestions for a Last Will and Testament or changes to the current one, possible establishment of a trust, an advance health care directive, appointment of a durable power-of-attorney, and other estate planning strategies.

7.  Have a review process. Provide for a review either annually, every 6-months, or whenever a significant event occurs such as a heart attack, injury, or other event that requires a review of the care plan. This gives all family members an opportunity to review the funds and financial resources being used to care for your loved one. The caretaker can also report on the situation and if changes are needed.

8.  In accordance with recent case law and MassHealth regulations, any payment(s) made to a caretaker must coincide with the commencing of the Caregiver Agreement; payment must NOT be made in advance NOR can it be made in arrears.

9. Termination clause–this gives either party the right to terminate the agreement for cause or without cause, or it may include the right of other family members to terminate the caretaker on a vote.

These are suggestions for a typical caretaking agreement but you should consult an elder law lawyer about your own unique situation and what other provisions to include.

Consult Elder Law Lawyer Patricia Bloom-McDonald

Becoming a caretaker or arranging for one for your parent or other loved one is a difficult task that requires substantial responsibilities and preparation. It is best to consult with an elder law lawyer such as Patricia Bloom-McDonald if your loved one is facing aging issues and is in need of caretaking services. Attorney Bloom-McDonald has years of experience focusing solely on issues facing the elderly and can counsel you, your family, and your loved one on what should be included in your Caretaking Agreement.

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