Can I get paid as a caregiver for my parents?

By: Peter R. Certo, Jr., Probate and Estate Planning attorney

This question comes up in many estates and often causes ill will and litigation. The normal scenario is a parent who may be feeble or ill. One child provides the primary care. It may just be in the form of running errands, transporting to doctor visits and daily checks. It might also escalate to living with the parent and providing full time care. This can go on for months or years. Eventually the parent dies and a dispute arises between the siblings. This can also arise if the care provider is an extended relative or friend. You might even have a situation where someone quits their job to provide the full time care and/or provides all the cost for shelter and food for the parent.

Once the parent dies and estate is opened the issue arises as: "I took care of mom for all those months and I should get paid for that time". The other beneficiaries usually do not agree and the bitterness starts. Unfortunately the law is not on the caregiver's side. There is a legal presumption that any transaction between relatives is a gift. That presumption can be overcome by a written contract for payment of those services, but a written contract is rarely prepared. An oral contract can be valid but proving it is difficult, especially when the person agreeing to the services is now deceased. The caregiver requesting payment for care services rarely wins in probate court, and once the claim is made and denied, the family is fractured forever.

The only effective way to guarantee reimbursement is having a written agreement for the defined services. Agreements can be written and signed by the individuals but drafting your own contract is risky business. The usual attack on such an agreement is that "mom was forced, tricked. or did not know what she was signing". As distasteful as it may sound to have a lawyer prepare such a contract, it may just keep the family intact after the death.