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When It's A Child's Turn to Take Care of Mom or Dad
A Caregiver Agreement May Be in Order

By David Cutner
(Page 3 of 3)

Second, the caregiver’s duties and responsibilities should not duplicate the services that are being provided to the elderly person by a nursing home, or a home care aide. The types of services that are generally acceptable are those provided by geriatric care managers; for example, paying bills, managing finances, providing transportation, managing social activities, providing companionship, among others. Also, it may be difficult to get Medicaid to accept the Caregiver Agreement if you have been performing the same services without being paid.

Third, if the Caregiver Agreement provides for a lump sum payment, it must be calculated with reference to the life expectancy of the Medicaid applicant. Obviously, the term of the agreement cannot exceed the applicant’s life expectancy. In most states, the Social Security Administration’s life expectancy tables may be used for this purpose.

Fourth, the Caregiver Agreement should provide that the caregiver will pay to Medicaid any unearned portion of a lump sum payment that the caregiver received if he or she becomes unable to fulfill his or her duties under the agreement or if the Medicaid applicant dies before his or her calculated life expectancy.

Fifth, the agreement must be irrevocable and non-assignable.

Finally, the Caregiver Agreement cannot stipulate that services will be provided on an “as needed” basis. Rather, the agreement must specifically state the average number of hours to be provided each week. The caregiver should keep detailed logs of all services provided, and, as a best practice, actually render invoices for such services.

The use of Caregiver Agreements has significantly increased in recent years because these agreements can be an excellent solution for avoiding a Medicaid penalty, while providing a caregiver with fair compensation for his or her services. Because of Medicaid’s strict policies and ever-changing rules and regulations, you may want to consult with an Elder Law attorney in your local area before entering into a Caregiver Agreement.

David Cutner has practiced law for more than 35 years in New York City, and is a founding partner of Lamson Cutner, P.C., a leading Manhattan Elder Law firm. Mr. Cutner is the author of numerous published special reports and articles on Elder Law topics, a frequent public speaker at nursing homes, hospitals, senior centers, and other organizations, and a regular guest on the “Health Talk” radio show on WMCA 570 AM in New York and on the Internet. Mr. Cutner is well-known as an experienced and compassionate advocate for the elderly and disabled. For more information regarding Mr. Cutner and his firm, see www.lamson-cutner.com

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