Private Care Agreements Between Family Members

Informal care arrangements among family members for the care of elderly relatives are common, especially between parents and children. An elderly person may transfer his or her home to a family member in the expectation that the family member will provide him or her with care. Or the caregiving family member may expect to receive compensation for providing care in the elder person's Will. These arrangements are rarely in writing or documented, and expectations may be left unspoken.

Laura Watts, Program Director of the Canadian Centre for Elder Law Studies , gave an excellent presentation to the Kelowna Estate Planning Society tonight on family care agreements. There are often problems with these arrangements that stem, at least in part, from the failure of professional advisers to identify the parties' expectations, and to make sure that each of the elder person and caregiving relative receive independant legal advice on the arrangement. The parties often fail to consider what should happen if their circumstances change in the future.

For example, if a mother transfers her house to her son, on the understanding that the son will live with her and take care of her, thereby allowing her to remain in the home, what happens if her health deteriorates and the son does not feel he can continue to provide her with care? Can he tell her to go into a nursing home? What if the mother enters into a common law relationship or remarries? What if the son wants to sell the home, and move somewhere else? What if either the mother or son find it more difficult to live with the other than her or she expected? If the mother has other children, will they resent the transfer of the house to their brother, causing family conflict?

If the mother does not transfer the house to her son, but promises to leave the house to the son in her Will, there may be conflict among family members over her Will after her death.

The British Columbia Law Institute has published a Report on Private Care Agreements Between Older Adults and Friends or Family Members, that considers these types of arrangements, and the problems that can stem from them in depth.