Nov 30, 2016
By elder care attorney and senior advocate Rick Law, founder and managing partner of the multi generation law firm of Law Elder Law, serving seniors boomers and their families in West suburban Aurora in Illinois.
It is believed that caregiving has detrimental health and psycho-social consequences for caregivers. People frequently hear stories of the healthy wife taking care of her husband who is suffering from dementia. Often, when the husband finally passes, the wife’s health takes a quick downturn and she passes soon after. Being a caregiver, especially for a loved one, takes a toll.
Caregivers are more likely to suffer from poorer physical and mental health than non-caregivers. Because of this burden, the family lawyer (or the lawyer in the family) is going to see more and more caregivers who want to create personal-care contracts that specify that the caregiver will agree to help the elderly person for a set amount of time in exchange for an hourly wage for these services.
After the death of the affected loved one, lack of a personal-care agreement often leads to an estate administration problem. Many states provide a legal basis for an uncompensated caregiver to file a claim against the estate.
The decedent’s creditors, provided they have an allowed claim, generally will be ranked ahead of the beneficiary when it comes to collecting on a claim. If the family caregiver does not have a personal-care contract, the caregiver will have a hard time establishing a status as a creditor with an allowed claim. In fact, many states’ dead man’s statute, which makes any testimony showing that the decedent entered into an express oral contract inadmissible, will stop caregivers in their tracks if they do not have a written contract.
Even if caregivers are able to imply an oral contract existed, they are faced with the common-law presumption that the services were rendered gratuitously. It is possible to rebut this presumption, but it is a difficult road.
Some states are recognizing this problem and addressing the needs of the family caregiver. The Illinois Probate Act permits family members who live with and care for a “disabled person” to file a claim for reimbursement in probate court upon the disabled person’s death.
Too many families needlessly lose everything they have. Don’t let that be you. If you need help paying the overwhelming cost of long term care, give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now, because when you’re out of money, you’re out of options!
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick has been named the #1 Illinois elder law estate planning attorney for the past 8 years in a row by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!
My wife and I had our first child three years ago. That’s when we decided to set up a trust, should anything happen to either of us. We reached out to Zach Hesselbaum to help us out. He was very thorough and professional throughout the whole process. Zach went above and beyond to make sure that we understood every detail of setting it up and he did an excellent job. We recently had our second child a few months ago. With the new baby, he helped us make the necessary revisions to the trust. Zach made this process great for us! I would definitely recommend using him for any of your estate planning needs!
Tom G., Naperville, IL