What Are You Owed as a Caregiver?
When a loved one or friend becomes incapacitated, you might find yourself juggling multiple roles. You may be called on to make decisions on their behalf with regard to their care or their finances. You may have to provide practical, day-to-day help with everything from bathing to buying groceries. This means you may be acting in a legal role as an attorney or guardian for personal care or property, all while providing valuable hands-on support.
All this takes time, and takes effort. However it’s not always clear whether and to what extent these different roles should be compensated, especially if you don’t have formal training or experience as a nurse or personal support worker.
The simple answer: there are legal guidelines to help calculate what someone should be paid for making decision as an attorney for property. There are not the same clear guidelines for acting as a substitute decision maker as an attorney for personal care.
This post deals specifically with how the courts look at requests for compensation for caregiving and discusses some practical steps you can consider if you find yourself in a caregiving role.
How The Three Roles Differ
As a guardian or attorney for property, you might be handling banking arrangements, paying bills (including payroll for caregivers), seeking financial advice and buying or selling property.
As a guardian or attorney for personal care, you might be hiring and scheduling personal support workers and caregivers, determining the living arrangements for the incapable person, or providing informed consent to treatment on their behalf.
As a caregiver, you might assist with getting dressed, preparing food, toileting, or may simply be offering companionship.
The “Family and Friends” Discount
In general, courts have found that where a person has received the benefit of personal care services, the caregiver deserves to be compensated. However, the approach to calculating payment can vary widely from case to case.
There is often an expectation by the court that family members will offer other family members for whom they are caring a “family and friends” discount.
This was reflected in Childs v Childs,1 where an adult daughter providing personal care to her mother asked the court for a retroactive payment of $133,000 for a 2.5-year period of care, as well as compensation at the same rate for another two month period, and compensation at an annual rate of $53,620 going forward. Her two brothers disputed her claim.
The Court refused her request, settling on payment for personal services to date at $25,000. Going forward, the court allowed the daughter $500 a month as her mother’s “personal care manager,” in part as a stipend for the mother living in the daughter’s home. The mother had assets of approximately $1.8M.
In reaching its decision, the court looked at what was reasonable. It said family members should not be compensated for all of the care they provide one another. However, in some cases where a parent has been enriched by the personal care services (i.e., by being able to keep living at home) the person providing the care should be compensated accordingly. The court also ruled that that compensation should be based on the incapable person’s ability to pay - the size of the assets. 2
A Different Result
There was a different result in a more recent application before the Ontario Superior Court of Justice. In Re Daniel Estate 3 the applicants had been helping an elderly couple with no next-of-kin for more than two decades. The couple had substantial assets.
Initially, the applicants performed only neighbourly tasks, but over the years this evolved into all manner of chores that allowed the elderly couple to continue living independently and together. The applicants helped with banking, tax returns, household repairs, grocery shopping, transportation to medical and other appointments, assistance with purchasing medical equipment to support independent living, and companionship. 4
They continued to provide personal care services to their neighbours even after the elderly couple moved into assisted living and the husband passed away. Until his passing, the applicants had not sought any compensation for their services.
While the applicants hadn’t kept a detailed docket of the time they spent helping the couple, they were able to provide evidence of the types and frequency of the services they had provided. The judge was confident “...that they dedicated countless hours over the years...[that] were meaningful as they permitted [the elderly couple] to live independently as long as possible.”
Their application was unopposed. The judge agreed with their estimation of the value of their care, and awarded them $135,462 for their six years of service.
In practice, as a caregiver you should keep your expectations in check with respect to being fully compensated for every task or hour you spend providing personal care services.
You will be better able to illustrate the way in which you have enriched the person for whom you’re caring if you log information about the services you’ve provided the same way a professional caregiver, such as a personal support worker or a nurse, would when presenting the information to receive a paycheque.
If you are providing someone with personal care services for which you hope to be compensated, you may want to consider consulting with a lawyer experienced in this area of the law who can advise you about the records you should keep or any actions that you should take to better secure your claim for payment.
1 2015 ONSC 4036, 2015 CarswellOnt 9627.
2 Although the daughter appealed the amount awarded by the trial judge, the Ontario Court of Appeal held that the ground of appeal failed (2017 ONCA 516). The Supreme Court subsequently denied leave to appeal.
3 2019 ONSC 2790, 2019 CarswellOnt 6682
4Ibid at para 11.