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Considerations When Hiring Caregivers

May 10, 2019

 

“My father changed his Will in the last month of his life, leaving his home to his caregiver. This seemed wrong to me and I wonder if it is common?”

 

As an estate planning attorney, I hear stories like this all too often. If it has happened to you or to someone you love, or if you want to ensure that it doesn’t happen, please read on.

 

An elderly person is often vulnerable to abuse of various types. The one described above is, unfortunately, more common than we want to believe. A senior who has experienced the death of a spouse, child, or pet, or who has experienced a decline in physical, mental or emotional health, can be particularly vulnerable to a caregiver who provides daily assistance and exerts tremendous influence. An ailing or grieving senior is looking for emotional comfort and/or physical help and may feel helpless or out of control for the first time. He or she may receive lots of attention from the caregiver, while family and friends may be many miles away and unaware of the depth of the physical, mental and emotional needs.

 

Sadly, there are caregivers who intentionally isolate a vulnerable senior by screening calls from family and friends and by not informing the family of the seriousness of the situation. A caregiver may tell the senior that his or her friends and relatives are too busy and don’t care enough to call, while the caregiver has told the family that everything is fine. Understandably, a vulnerable senior may begin to see his or her caregiver as the only lifeline open to them and they become extremely grateful for the good fortune of finding this “wonderful caregiver”. A point is soon reached where the bond between the senior and the caregiver is such that nothing anyone says would convince the senior that the caregiver is not their best friend and soulmate.

 

It must also be stated here that caregivers may also be vulnerable in these situations. Those caregivers with a sincere desire to aid the senior and who have no malevolent intent may find themselves in an uncomfortable position where the dependency and trust from the senior exceeds the intended purpose of the relationship. This highlights a significant difference between a solo private caregiver and caregiving from a licensed and insured agency. The agency care may cost more, but the care is monitored by a supervisor and the caregivers are part of a team of care providers providing oversight and accountability on many levels.

 

Some relationships create a fiduciary duty as a matter of law, such as the relationship between attorneys or brokers and their clients. In a caregiver/care receiver relationship there is often no formal or contractual agreement that imposes a fiduciary duty. Whether such a duty has been established in a caregiver/care receiver relationship is a question of fact. The person who has influence or control over another person may have a duty to act in a manner that is in the best interest of the person under influence. The sequence of events that occurred in the development of the relationship between the caregiver and the care receiver would determine whether a fiduciary duty was created and whether the actions of the caregiver violated the duty imposed.

 

Therefore, if you find yourself in a situation like the one described above, there are many questions to ask and answers to uncover, such as:

  • Is the Will valid?

  • Was the senior competent to make a Will?

  • Was he/she under the influence of a medication, a misunderstanding, mistake, restraint, fraudulent representations, or undue influence?

  • Was the caregiver in a fiduciary role or authority in relation to the senior?

  • Was the Will computer generated or prepared by an attorney?

  • If computer generated, who helped the senior put the information into the computer and who were the witnesses? Who secured the witnesses? How well did the witnesses know the senior and did the witnesses think that the senior was competent?

  • If an attorney was used, was it the senior’s attorney? If not, why not? Who called the attorney? Who drove the senior to the attorney’s office? Was the caregiver in the room with the senior and the attorney or did the senior speak with the attorney in private? How much time passed between when the senior saw the attorney and signed the Will? Did the senior or anyone else review the draft of the Will before it was signed? Were there powers of attorney in place? Who was named as the agent and successor agent on the power of attorney? Did the power of attorney get revised at this meeting with the attorney? If so, how was it changed?

There are many more relevant questions that should be asked and answered. All these questions of fact become very important in determining who has the burden of proof. Usually the injured person has the burden of proof to show that the actions of another harmed them.

 

However, if a person was harmed by someone who had a fiduciary duty, the burden of proof shifts to the fiduciary to show that their actions did not cause harm. If it could be shown that the caregiver was in a position of influence and control over a vulnerable senior in their care, a fiduciary duty has been imposed on the caregiver, and he/she would then have the burden to show that the changing of the Will was for the benefit of the senior and not themselves. That could be a high bar to get over in this situation.

Will changes at the end of life can raise many issues and potential concerns. If you are faced with this type of situation, it is important to remember that the statute of limitations (the window of time during which a formal petition contesting a Will must be filed) dictates that a Will challenge must be filed with the court within 4 months of the probate of the Will (RCW 11.24.010 ).

 

If a dark cloud of doubt hangs over the Last Will and Testament of someone close to you, run, don’t walk, to seek professional advice.

 

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