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Creating a Private Caregiver Contract Can Be a Legal Lifesaver

An official agreement can protect you and your family from legal issues, miscommunication

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I count my lucky stars for the day I met Peggy. I’d spent the previous three months caregiving for my mother, practically 24 hours a day. My mom, Cookie, had been through chemotherapy, radiation and surgery and was losing the ability to walk and talk. She was flat-out exhausted, and so was I.

Peggy had been a caregiver for her own mother and other family members. She was between jobs. She needed income and I needed help. After one meeting with Mom and me, we hired Peggy to be my second set of hands — taking Cookie to appointments, spending the night occasionally and handling light cleaning and food preparation.

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As Mom’s medical needs increased, I also hired a professional caregiving company with nurses and CNAs to pitch in. While I appreciated their services, they could not do what Peggy could. Years of caregiving meant she just got it. She organized our daily log of symptoms, medications and events. She recognized when Cookie was struggling and needed to check in with the doctors, even finding a doctor who could do a procedure to help give her back her voice after the tumors fully impinged on her vocal cords. Peggy vetted skilled nursing homes and toured many of them on her own time when Mom decided she wanted more intensive therapy to learn to walk again. More than anything, Peggy was a calm, steadying presence for my mom. She’d sit with Cookie and knit hats to keep her bald head warm, chat about the good old days of the ’60s, and comfort her in ways only a peer could. One night, Peggy showed up at the emergency room at 3 a.m., her knitting bag in hand, to be with my mom so I could go home and get some sleep. Peggy was an absolute lifesaver — I couldn’t have been a long-term caregiver without her. Mom has since passed away and Peggy is still a part of my life. She’s not just a friend; she’s family.

That’s my story about how hiring a private caregiver can go right. A decade later and now as a lawyer who specializes in caregiving legal/financial issues, here’s what I did wrong: Peggy and I had no contract in place for her services. She just kept track of her time spent doing things for Mom, and I paid her with a weekly check. When she went above and beyond, I paid her more, but we had no agreement for that. Peggy really wasn’t obligated to do most of the tasks she handled. She could have gotten hurt lifting Cookie and sued us. It was her generous spirit and my leap-of-faith trust in a stranger that made it all work.

Any caregiver will tell you, there comes a point when they feel they can’t caregive any longer without help. We sacrifice our time, health and financial well-being to provide unpaid care to our loved ones. If there aren’t enough family and friends to pitch in, the only option is to hire outside assistance.

Video: A Legal Checklist for Family Caregivers

Private caregivers fill the professional caregiver shortage

Anyone who’s attempted to hire a professional caregiving service will tell you it can be tough to find reliable help. There’s a nationwide shortage of in-home caregiving aides. Many areas have lengthy waiting lists and a lack of personnel. And as the population ages, the need for in-home aides is only going to grow. Without enough professionals available, more care receivers and their families are exploring hiring privately to fill the gap.

Going without a contract for a private hire is a risk. You are opening yourself up to potentially being sued or having to sue the caregiver and, without a written agreement, it will just be your word against theirs. Your oral agreement and handshake deal may not be enforceable in court. Having a contract, as a binding legal document, will protect the caregiver, your loved one and you.

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A private caregiver contract

There’s a lot to think about when hiring a private caregiver. You’re basically becoming an employer, and it’s important to think like one. To get you started, consider these topics:

  • The duration of the contract. Include when the caregiver is expected to begin work and for how long (biweekly, specific days and how many hours). If they are a live-in caregiver, you’ll need to address time off and vacation hours. I wouldn’t expect a caregiver to show up at the ER out of the kindness of their heart, like Peggy did for me, but ask if he or she can be available on off-hours or on an overtime basis if you could use additional help in emergency circumstances.
  • Specified work hours and locations. Will the caregiver work in-home only or will the location of care change to meet the evolving needs of your loved one?
  • Caregiver responsibilities. What tasks is the caregiver expected to handle? Give detailed descriptions of what services are going to be provided, like errands, food preparation, housekeeping, medication management or transportation.
  • Payment obligations. Agree on the frequency and rate of payment. This should include how often and what method of payment you will use to compensate the caregiver. Remember: Taxes and Social Security need to be a part of the employment deal. Make sure you understand what must be withheld and paid.
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  • Live-in caregiver details. With increased costs of living affecting almost everyone, a live-in caregiver can reduce household expenses for the care receiver and provide low to no rent and a safe place to live for a person in need of a job. You’ll need to figure out if you’ll charge the caregiver room and board or roll it into their compensation. You may want a separate lease outside of the caregiver’s contract.
  • How disputes are resolved. No one wants to end up in court. It’s expensive, time-consuming and stressful. Contracts can include mandatory arbitration or mediation language that would require everyone to try to resolve conflicts without suing each other.
  • Liability. You’ll be entrusting your loved one with the caregiver and the caregiver will be entrusting you with having a safe place to work. Most contracts for services address liability for negligence (this means accidents that result in hurting someone). Are you going to require the caregiver to have their own insurance policy? You’ll need to review your own insurance to find out if you have coverage if something happens to the caregiver on the job.
  • Termination of the contract. How do you plan to end the relationship if someone needs to make a change? You don’t want to be left in a lurch by a hire who doesn’t show up unexpectedly. Ask for written notice to stop employment and decide how far in advance you will want this notice.
  • Flexibility. Circumstances can change quickly for a care recipient. Cookie bounced from home to skilled nursing to home to hospice. Peggy was there — and I needed her help — every step of the way. The caregiving contract should have flexible terms to account for the likely possibility that the care receiver’s needs are going to change.

When creating a caregiver contract, ask the private caregiver for their input to craft an agreement that is workable for everyone. There is no one-size-fits-all document for this. Every state has its own contract laws, and your contract will be as individual as your family’s needs.

You may be tempted to prepare the agreement yourself. Contracts are complex legal documents, and it’s always advisable to talk to professionals when entering into a contractual relationship. A lawyer, an insurance agent and an accountant can help figure out the best way to bring a private hire on board as part of your caregiving team. And hopefully, they will become an indispensable part of your caregiving success story and, like Peggy, a member of the family.

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