Formalizing the Informal: Family Care Agreements in Canada and the United States

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In both Canada and the United States, family caregiving agreements are increasingly being used to formalize the responsibilities that family caregivers undertake when providing in-home assistance form their (typically) older relatives. Under such agreements, each party can be better off because of the bargain that these agreements represent. Older people who can no longer live on their own are able to secure reliable and sensitive caregiving services that forestall moving to a care facility, while family caregivers receive tangible recognition of their considerable caregiving efforts and attendant personal sacrifices.

The article first focuses on how family caregiving agreements are treated in the United States in two very legal different contexts: first, the disparate income tax treatment of care-related asset transfers between generations depending upon whether such transfers are ultimately characterized as compensatory or donative; and two, how such transfers can facilitate accessing government-financed health benefits, particularly long-term care in a nursing facility. The article then examines the British Columbia Law Institute's report entitled Private Care Agreements Between Older Adults and Friends or Family Members. Specifically, the article considers this report's Guidelines for Good Practice and its list of “What Ifs” for attorneys to consider when drafting such agreements.

By Richard L. Kaplan

The full article can be found in Volume 1, Issue 1 of the Canadian Journal of Elder Law.

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