Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

http://lawprofessors.typepad.com/elder_law/2014/03/downstream-consequences-of-under-the-table-pay-for-elder-care.html

Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink

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Comments

It is not difficult to pay household help "on the books" once it is set up. I did for my mother because she insisted that she would not deprive anyone else of social security benefits that she, in her youth, had fought to get for all working Americans.

Posted by: Karen Miller | Apr 1, 2014 5:01:43 AM

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