Tuesday, October 31, 2017
Adam S. Hofri-Winogradow & Richard L. Kaplan recently posted an Article entitled, Property Transfers to Caregivers: A Comparative Analysis, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
Caregivers are key recipients of property transfers, both inter vivos and testamentary. The law's treatment of property transfers to caregivers changes according to the caregiver's relationship to the person cared for. Where caregivers are related to care recipients, the law generally favors the structuring of property transfers to caregivers as capital, rather than income transfers: while the law accepts that the daily work of care, done by people for their relatives, is often uncompensated, many family caregivers receive bequests larger than their intestate shares of the care recipient’s estate. Where, on the other hand, caregivers are not related to care recipients, the law approaches the care relationship using the terminology and frame of labor law. Bequests to non-family caregivers can raise a presumption of undue influence.
In this Article, we examine the approaches taken to property transfers to caregivers by the U.S., Israel and the U.K. The U.S. authorizes the payment of public benefits to family caregivers only in very restricted situations, relying on family caregivers working for free or being compensated by the care recipients. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. We examine the pros and cons of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient and claims raised against the recipient’s estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the U.S., a fully publicly funded model is probably impossible.