Can I get paid to be a caregiver for a family member?

The answer is, yes, maybe. At USA.gov, there are tips for caregiver support including links to programs that could pay you to serve as a family caregiver. That site offers the following insight:

A caregiver helps a person with special medical needs in performing daily activities. Tasks include shopping for food and cooking, cleaning the house, and giving medicine. Many government programs allow family members of veterans and people with disabilities to get paid for caring for them.

• • The Medicaid Self-Directed Care program lets qualified people manage their own health services. It also lets them hire family members as caregivers in some states.
  • The Veteran-Directed Home and Community Based Services program offers veterans a flexible budget. This allows them to choose goods and services they find most useful, including hiring a family member or neighbor as a personal care aide.
  • Aid and Attendance benefits for veterans work in conjunction with a VA pension. These benefits help cover the costs of a caregiver, who may be a family member. Contact the VA pension management center in your area for rules and conditions.
  • Long-Term Care Insurance allows family members to be paid as caregivers. But some policies won’t pay family members who live with the person they’re caring for. Contact your family member’s insurance agent for more information. You can also ask the agent for a written confirmation of benefits.

Medicaid and Family Caregivers

If the person you’re caring for has sufficient income or resources, they can pay you to care for them. But be careful if the person you’re caring for needs Medicaid because there are probably rules concerning how those arraingments need to be structured. For example, in Georgia, personal care contracts must conform to ABD Manual Section 2349. Georgia does not permit lump-su caregiver agreements like some states. Instead, Georgia Medicaid says the agreement is invalid unless all of the following criteria are met:

• The personal care contract must be executed prior to the provision of services. The contract cannot be applied retroactively to pay for services that were provided prior to the agreement.
• The personal care contract must be in writing, signed, and dated by each party. The contract must be notarized.
• The personal care contract must have been made by the applicant/recipient or a legally authorized representative such as an agent under a power of attorney, guardian or conservator. If a representative signs the contract on behalf of the applicant/recipient of the services, that representative may not also be a beneficiary of the agreement.
• The personal care contract must specify the type, frequency, and number of hours spent for each service or assistance to be provided in exchange for the payment. The terms must be specific and verifiable.
• These services must be provided at market rate.
• The personal care contract must provide for payment upon rendering the services or assistance, or within thirty (30) days thereafter and; must be supported by evidence that payments were made in accordance with the agreement.
  • Any payment(s) made prior to the date the contract was signed by all parties is considered an uncompensated transfer.
• The caregiver cannot be the spouse or parent of the applicant/recipient.
• The applicant/recipient or a legally authorized representative must have the power to modify, revoke or terminate the agreement.

Not all of the Georgia Medicaid agency’s requirements are legitimate. The main issue is whether the personal care contract is enforceable. If the agreement is legally enforceable, then payment is allowed for care because no penalty is imposed when the Medicaid applicant applicant pays a valid debt. See ADB Manual Section 2342-2. In enforceable contracts, “consideration” is a required element. The law presumes a family member would provide care out of love, which is not the type of consideration flowing from the caregiver that makes the contract enforceable. This is “old law.” For example, in Tatum v. Moss, 58 Ga. App. 434 (1938), the Court of Appeals said:

“Where an adult child renders services in and about the home of his or her parent, these services being in their nature those usually or which might reasonably be expected to be rendered by such member of the family in the circumstances, the common and most reasonable inference, and therefore the only inference acceptable in law, in the absence of an express showing to the contrary, is that the services are rendered and accepted as a gratuity. Out of the family relationship arise certain obligations and duties, based on love and affection, for which, when performed, the law rightly attaches no contractual obligation to pay. So where an adult child renders services to an aged and infirm parent in the nature of care and attention, and such care and attention in the circumstances constitute services and acts which, from the common experience of mankind, should proceed from the relationship existing between the parties, the strong and conclusive inference is that there is no intent to exact compensation on the one hand, or to pay therefor on the other.”

The intention of the parties is key, which is why a prior written agreement is required (or at least strongly suggested). In McRae v. Britton, 144 Ga. App. 340 (1977), a caregievr sued the estate of the care recipient for services rendered. Citing Tatum, the Court said: “Our courts applying this rule have repeatedly held that the circumstances in evidence presented a question for the jury to determine whether it was the intention of both parties that compensation be made, or on the contrary, that the services were performed for a deceased out of a sense of duty arising out of a family relationship. … The surrounding circumstances here plainly indicate that it was the intention of both parties that compensation should be made, and “it appears from the great weight of decisions in Georgia that, where the facts do not plainly demand an inference that the services were gratuitous, the particular facts of each case should be submitted to the jury under proper instructions as to the law.”

Using the above logic, Medicaid takes the position that, unless the usual presumption is rebutted with a prior written agreement, the person receiving care simply gave away money to the caregiver and Medicaid imposes a transfer of resources penalty. So, Medicaid can require that a valid contract be present if you want to avoid its transfer penalty, but Medicaid cannot pile on unnecessary additional terms the law does not require. For example, there is nothing in Georgia law requiring that all contracts be notarized and there is nothing in Georgia law preventing an agent under a power of attorney from signing the contract for the care recipient and then being paid to provide care. What is in the law are new power of attorney provisions limiting gifts in O.C.G.A. § 10-6B-56. Unless those provides are followed, the general rule is that an agent has a duty to his or her principal and cannot take the principal’s property without express permission.

Although we’re re-posting all of subsection (c), subsection (c)(4) of O.C.G.A. § 10-6B-56 expressly contemplates Medicaid Planning.

An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:

(1) The value and nature of the principal’s property;

(2) The principal’s foreseeable obligations and need for maintenance;

(3) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;

(4) Eligibility for a benefit, a program, or assistance under a law or regulation;  and

(5) The principal’s personal history of making or joining in making gifts.