Posted Jan., 2007 Kurt R. Nilson, Esq.          |            CLICK HERE FOR MORE ARTICLES

It is sometimes believed that living with and acting as another person's caregiver will provide the caregiver with the right to remain in the house or to claim a share of the estate following the patient's death.  Children often believe that caring for an elderly parent entitles them to greater share of the parent's estate, particularly when that child's siblings provide little or no assistance with the parent's care. 

(Rather than repeatedly use phrases like "the person receiving personal care services" or "the child's elderly parent", this person will be referred to as the "patient".  This is merely for convenience and not to indicate any formal relationship exists with the caregiver.) 

By itself, the act of providing someone with personal care does not provide the caregiver with any rights to a portion of the patient's estate, even if the caregiver has a family relation with the patient.

Many patients may actually intend to have the caregiver own the house or receive a portion of the estate, but, like so many people, just never get around to creating legally effective documentation like a valid will or deed.

A caretaker may still have the ability to make a claim against the estate when there aren't any valid documents.

Verbal Agreements

It is possible for a patient and a caregiver enter a valid agreement that entitles the caregiver to a portion of patient's estate in return for caregiver's services. 

A valid agreement may even exist where the patient and caregiver do not have a written, signed contract between them.  Verbal agreements that are properly formed and acted upon are legally enforceable.  However, as with all legal issues, the strength of any claim will depend upon the individual facts of each case, particularly the language that was used by the parties.

Vague Agreements

Statements such as "You won't have to worry when I'm gone" or "You'll be taken care of when I'm not around" are very vague.  Where this type of uncertain language is used, it is difficult for the caregiver to enforce the apparent agreement against the patient's estate.  Suppose that it is proven without any doubt that the patient made these statements, without more it will still be difficult for the caregiver to collect. 

One reason is that the caregiver's opinion of how much money is needed to satisfy these requirements can differ greatly from the patient's opinion, but only the caregiver is available to express his or her opinion.  It may also be found that the patient was making similar remarks to others, even those who did not provide personal care, which makes the patient's intention to enter an agreement by those words seem less likely.

Specific Agreements

Even with more clear statements such as "You can have my house when I'm gone", there may still be some difficulty in enforcing the apparent agreement.  One of the most important factors in these circumstances may be the patient's legal ability to enter such an agreement. 

For example, it must be determined whether the property was titled in a manner that entitles another person to its ownership.  If a patient holds title to the house as joint tenants with the right of survivorship with any other person, the surviving joint tenant takes title upon the patient's death by operation of law.  Even though the caregiver may have entered the agreement without knowing of the other owner, the surviving joint tenant's ownership cannot be impaired by the caregiver's claim.

A house may also be subject to a mortgage, which must be satisfied prior to a transfer of the house into a new owner.  If the agreement was for a specific item of personal property, such as a car, these items may also be collateral for a secured debt that must be paid prior to transfer.

Even where the agreement was for a defined sum of money, the caretaker's claim becomes a general debt of the estate which will be paid along with all other general debts.  If the estate does not have sufficient assets to fully satisfy all general debts that are within the same class, each debt typically receives a proportionate reduction of its total value.

Although the terms will be more certain and may be less subject to challenge, payment according to the terms of a valid, written contract will also be subject to all of these previously described factors.

Wills

A will that names the caretaker as a beneficiary is more certain than a valid verbal agreement, but is still not a guarantee that the caretaker's expectations will be met.

Just as with a valid claim against the estate based upon an agreement, the estate's debts must be paid before the caretaker will receive any gifts made by the will.

However, being classified as a specific testamentary gift generally means that the gift will only be paid after every one of the estate's unsecured debts are fully satisfied. 

Unlike a general debt, a testamentary gift does not receive a reduced payment when there isn't enough to pay all of the estate's other obligations.  If there are insufficient assets to pay all of the estate's debts, the beneficiaries of the testamentary gifts simply do not receive any payment.

It is also important to note that wills are not effective until the moment of death.  Although a properly drafted will is legally valid at the time it is properly signed, it is not a legally enforceable document until death.  This aspect of wills allows them to be changed at any time and any number of times prior to the moment of the creator's death.

Although a patient may produce a valid will that honors the agreed obligation to the caregiver, the patient is free to change, replace, or destroy that will at any time prior to death and without informing the caregiver.  Of course, the patient may have still have a claim against the estate in these circumstances.

Finally, even a testamentary gift made to a caregiver under a valid will from an estate that has sufficient assets can be superseded by the legal rights of one of the patient's relations.  Surviving spouses, in particular, are frequently provided with the right to claim a specific sum or portion of the estate.

For example, Pennsylvania allows a surviving spouse to claim an "elective share" equal to one-third of the deceased spouse's estate.  Pennsylvania also provides certain family members the right to claim a "family exemption" of $3,500 in specific circumstances. If someone makes a claim based upon this type of legal right, the amount of the caregiver's claim or gift will be subject to the estate's obligation to satisfy that claim.