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Caretaker Abuse

The issue of elder abuse is well documented. However, a less known form of injustice is that of the child caregiver. This article will discuss the issues often faced by a child caregiver.

A common fact pattern begins with a mom or dad having an incident. It could be as simple as being unable to remember a phone number, or it could be a sickness. The incident results in the family recognizing the parent can no longer take care of themselves. At that point a family member, often a child, steps forward and moves in with the parent. They often drop other aspects of their lives. The child uses the parent’s funds for basic living expenses. The parent dies and here is where the injustice begins.

The other family members are seeking “their share” of the parent’s estate. As the home is frequently the most valuable asset in the estate, the siblings want to sell the home as soon as possible. The transition is difficult for the transitioning child.

There are a few ways and best practices family members can utilize to address these situations. The best practice would be to address this issue in advance with a customized estate plan. A trust holding the home with provision including a right of first refusal, a certain move out date, and the amount of rent that is disclosed to the children tends to put the issue to rest. The reason being that the heirs know what to expect and that it was the parent, and not the caregiver child, who set the parameters.

In the absence of a written plan, typically the next best step is a family meeting. The major issues to address are rent and when to sell the property. The issue for rent typically turns on the extreme between no rent and fair market rent. It is important to inform all the parties of the status quo. We believe that it is typically a good idea to maintain the status quo for a period of time. Thus, if no rent was being charged at death, perhaps a period of time for no rent payments to continue makes sense. However, a date needs to be set when rents will begin. The other issue is the sale of the residence. This will by necessity require the caregiver child to relocate. Thus, a move out date should also be set. The caregiver child will need to find alternative housing. As long as the caregiver child is paying rent, the other heirs tend to be more flexible. In any event, the other heirs should keep in mind that the probate act does not allow an administrator to take possession of a house where an heir resides without leave of court. See the Probate Act, 755 ILCS 5/20-1(b). As the proceedings to take possession of a home can get expensive, it is in everyone’s best interest to reach common ground on where everyone’s interests and needs are addressed.

Another remedy the caregiver child can seek is compensation from the decedent’s estate for the services they rendered to the deceased parent. See Probate Act, 755 ILCS 5/18-1.1. If the child caregiver took care of a parent who was disabled for 3 years, the caregiver child can file claim against the parent’s estate. The claim will take into consideration the child’s lost employment opportunities, lost lifestyle and emotional distress experienced. The court may reduce the payout to the extent the arrangement provided for a physical or financial benefit to the caregiver child. The claim will be in addition to a reasonable claim for nursing or other care. The claim will be paid out based on the percent of parent’s disability where a 100% disability pays out $180,000 and a 25% disability pays out $45,000.

While the child caregiver has rights, the best practices is for the parent to address the issue in advance. This way reasonable compensation (whether it be rent free living after death or some other rights) can be established in advance. By being transparent and setting up expectations in advance, the family is better able to not only avoid litigation but also promote family harmony once the parent passes.

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