A written Caregiver Agreement is a good idea for family members who want to protect family harmony, and make sure everyone in the family understands how care is being provided to an elder.
A family care giver can save an elder from needing nursing home services, and may protect assets from nursing home expenses in the future.
Because of the Deficit Reduction Act, it is more difficult to qualify for Medicaid. Elders who want to protect their assets from nursing home care costs should consider setting up a Caregiver Agreement whenever adult children and other family members are providing valuable care.
MassHealth has issued a memo that requires that all Care Giver contracts be reviewed by the MassHealth legal department in Boston, and the Division of Medical Assistance has rejected care giver agreements. A 2007 Massachusetts Appeals Court case (Andrews v. Division of Medical Assistance) shows that caregiver contracts for past services will not work. But court challenges by elders who are using Caregiver Agreements to pay for current services may decide that these agreements are valid, and the Massachusetts Legislature is considering a new law to provide legal protection for families who have the foresight to use these contracts.
An Act to Help Families Care for Elders would set guidelines for Personal Care Contracts. Sponsored by
Senator Montigny and Representative Khan, Senate Bill 59 and House Bill 536
would permit seniors to pay privately for a family member to provide personal care or managerial services without later disqualifying them from MassHealth long-term care. Currently MassHealth considers a contract for family care to be a disqualifying transfer of assets for less than fair market value. Legally recognized care giver contracts would help maintain an individual at home, and make it financially possible for the family member to provide care. It requires that the contract services must be reasonably priced and necessary to prevent or delay placement in assisted living or nursing home. As of September, 2009, the proposed law is being considered by the Joint Committee on Elder Affairs.
Care can range from part time services to 24 / 7 care and supervision of professional paid care givers. If an adult child or daughter in law takes responsibility for meeting an elder's needs, a caregiver contract can protect the value of those services from being ignored by MassHealth. The agreement between the elder and caregiver should cover:
- the care giver’s tasks and duties
- times and days the care giver performs the service
- care giver's responsibilities for supervision of other care givers
- reimbursement for expenses covered by the caregiver
- the elder's role as an employer who pays wages
- wages paid to the caregiver comparable to local home care companies
The care giver contract can help you and your family to:
- recognize and reward the time and effort that each family member puts in to care
- provide an organized schedule for care and other services
- prevent arguments and misunderstandings among family members
If the care giver agreement is accepted by Medicaid, it can reduce the size of an elder’s estate, and allow earlier eligibility for Medicaid long-term-care nursing home coverage. Call us if you would to preparing a Caregiver Agreement that suits your specific needs.