Caregiving for Family Members: Legal Issues and other Challenges

 by Elsie G. Holzworth

A recent issue of Real Simple magazine declared, “The senior population is set to nearly double by 2030, so even if you’re not an active caregiver right now, odds are you will be someday.” (Or, for that matter, you may be the person to whom the care is given.) So, it was quite timely that the WBAI/CBA Joint Task Force on Women and Aging, whose co- chairs are Sharon Eiseman and Elizabeth Wells, sponsored a program on Caregiving on January 21, 2016. The Speaker was Barry Kozak, an actuary and lawyer, with a consulting firm, Retirement HELP, Inc.

Kozak explained the difference between medical care and long term care. Medicare is a federal program for persons over 65 designed to cover medical care for “fixing the body” by prevention, amelioration or rehabilitation. But the patient must be showing signs of improvement. If the patient reaches a “plateau” and medical care is no longer making the body better, the patient may need long term care for help with activities of daily living, such as shopping, cooking, eating, bathing, cleaning. Other resources must be sought for support in regards to long term care.

According to Kozak, adult day care five (5) days a week out of the home costs an average of $22,000 yearly in Chicago. In-home care for four (4) hours a day costs $ 30,000 yearly, for twelve (12) hours it triples and for twenty-four (24) hours it is six times as much. A private room in a nursing home averages $90,000 yearly, with assisted living a little cheaper and Alzheimer’s facilities a little more expensive. These costs are paid by self-pay from the patient’s own funds, long-term care insurance, Medicaid for those with low incomes, or veterans’ benefits for those who served at least one day in combat. Kozak noted many people are not buying long term care insurance, perhaps because they think they won’t need it or don’t like the cost or the coverage. A lively discussion with the audience covered the experiences some attendees had with such insurance, both good and bad.

“Nearly 24 million American women provide care for another person,” noted Real Simple magazine. Kozak confirmed that there are more women long-term care providers than men, and they may be “losing economic opportunities because of their caregiving.” He suggested there is nothing in Illinois law that would prevent a “written employment contract spelling out the duties, hours, and compensation of a caregiver” who is a family member of the patient. The Illinois Probate Act (755ILCS5/18-1.1) provides for statutory amounts for claims against an estate by specified relatives who dedicated themselves for 3 years to the care of the deceased person with a disability. But, Kozak argued, written employment contracts for family members would not violate public policy if they contain reasonable compensation for the services rendered. The family member caregiver, in any event, should keep good logs as to what care is given. Legal structures in Illinois for caregivers include powers of attorney and guardianships. These structures come with various fiduciary duties. Clearly, caregivers must not engage in elder abuse, or make decisions in their own best interests instead of the interests of the person being cared for.

Other issues to be considered are where the care takes place. For example, a home may need to be refitted with a chair lift or an elevator, or a bedroom may need to be relocated to the main floor, a tub may need a step, and furniture that is slippery or with corners may need to be changed. A parent may now be the patient of a child, one child among several may be bearing the sole responsibility, and economic, social and cultural issues may need to be factored in, as well as the psychological effect on the caregiver.

Kozak provided a thorough and informative 42-page handout. His website is www.barrykozak.com.

Elsie G. Holzwarth was a solo practitioner for many years before retiring and dedicating her time to volunteering. She has been a member of the WBAI for over 45 years and serves on the Newsletter Committee.