Will our personal care agreement without bothering with a notary be sufficient?

Follow
Share

Mom has dementia - I have been taking care of her for the past 5 or so years and working FT but have had to cut back to PT as she is requiring more care now. I never planned on having her pay me but I really can't afford to do it otherwise. She was always adamant in the past about wanting to stay at home if possible so I don't really want to put her in a nursing home--she'd fight tooth and nail anyway. I am her POA. I have a personal care agreement I found on nolo.com and have filled it out. I'm only asking for a small amount, much less than what she would have to pay someone else. Here's my concern: At the bottom is a place for her to sign and for the caretaker (me) to sign. In the moment, if I explain to her what this is about she will readily agree, saying, "oh yes, that is very fair, I want to do this." HOWEVER, each time (I have brought it up several times already) she will forget what we had talked about and at first she will say things like "what? I don't need any help (she very much DOES) - why should I pay someone?" And of course after I explain the entire situation she then agrees. The question is....does this form need to be notarized? If I had to take her to a notary it could end up being quite embarrassing or worse if she says something like, "I'm not signing that, I don't need any help." LOL. The reason I ask is I know I will now have to claim this income on my taxes (and she will have to as well, claim the payment that is). Will our personal agreement without bothering with a notary be sufficient? I CAN get her to sign it at home, but of course she will never remember signing it. Not sure if I even need to worry about it, but I'm hoping I don't need to have it notarized. Thanks in Advance for any advice!

This question has been closed for answers. Ask a New Question.
18

Answers

Show:
Check out pro seniors. Click on your state. FREE legal advice. If they do refer you to someone else, like an elder lawyer, ask for a fee referral. This will make your consultation free or at a reduced price. Also a great place to print off documents for free.
Helpful Answer (0)
Report

Thank you! I will check that out.
Helpful Answer (0)
Report

Our local Senior Center offers a free consult with a lawyer by appointment. I think they have hours available once a week and time with each client is limited. You might check around to see if similar services are available near your home. It would be a place to start. Good luck.
Helpful Answer (1)
Report

Thanks, GardenArtist. That was much appreciated. Take care!
Helpful Answer (0)
Report

Akaheba, legal fees vary, but the information you would want shouldn't cost thousands, unless you get a shyster.

If you do want to consult an attorney, contact either the Lemon Grove Bar Association or the California State Bar Assn. and ask how to get names of elder law attorneys.

Or start here: http://members.calbar.ca.gov/fal/MemberSearch/FindLegalHelp

You could also search under Estate Planning, which is the practice area with a broader focus, before Elder Law became a popular designation for a more limited practice area.

From personal experience in working at law firms, I've always found the firms with an Estate Planning and/or Elder Law section are the best. You would have a choice of experienced (more expensive) attorneys vs. younger attorneys (less expensive). Younger attorneys who've just passed the bar are supervised by more experienced ones. Those who've been practicing a few years are generally good choices.

There might even be legal clinics sponsored by local law schools, although you wouldn't get the breadth of experience that you would from a law firm with a major EP/EL practice.
Helpful Answer (1)
Report

Okay, I get it now. I am new to this and I do want to do it right. I was under the impression that a lawyer would cost thousands. You make it seem more reasonable, so I'm going to check that out. Again, thanks....I appreciate everyone's input.
Helpful Answer (0)
Report

Even if bro and sis are in total agreement it would probably still be worth the effort to go the legal route. You can shop around for an honest lawyer (I know, LOL) who will give you a good price. If mom is still in the early stages she can probably still sign a document as long as the lawyer feels she understands and agrees. It is my understanding that a ironclad contract is needed because any doubt could effect your application for medicaid if she ever needs it in the future.
Helpful Answer (1)
Report

Pam posted while I was thinking and checking the article you referenced, which I'm quoting partially here to bring into context the issues you raised:

"Personal care agreements typically must include the following to avoid the transfer of money being deemed a gift:

..."•Be signed by both the parent and the person agreeing to perform the services (if the parent is unable to sign due to mental incapacity, have the agent under a durable power of attorney sign on the parent's behalf)"

I see your point; however, given that you're designated as having the power under the DPOA, you're essentially signing an agreement on behalf of your mother, but which benefits you. That is a conflict of interest.

Honestly, it wasn't my intent to upset you. I just wanted to caution you. I can understand your dilemma. This is in part why I also think that you need an attorney to advise you, as I'm not sure that what you want to accomplish can be done.

If it can't be done, wouldn't it be better to know now than later? Even if your sister agrees now, that may change in the future, and your brother may also become involved. If you're benefiting from a contract you signed, that just opens up avenues for accusations.

It's unfortunate that a situation like this has arisen, and I hope that anyone who's considering a caregiver contract learns from this situation and takes action before it's too late.

I wish I could offer other suggestions but at this time I don't have any.
Helpful Answer (1)
Report

In any state a POA who executes a contract that pays themselves has a "conflict of interest". Any notary who witnesses a contract signed by a dementia patient can lose their license and go to jail (I'm a notary in NY). Far better you pay a lawyer $200 now for an hour of their time than have to pay them $1000 later to retain them for your felony charges. Your choice.
Helpful Answer (0)
Report

I found this article right here on this site... https://www.agingcare.com/articles/personal-care-agreements-compensate-family-caregivers-181562.htm
and it doesn't mention needing a lawyer, though it does say to have the signatures notarized and that an "agent/POA" would have to sign for her. Since I am the POA does that mean I can sign? Not sure what "agent" means in this case.
Helpful Answer (0)
Report

This question has been closed for answers. Ask a New Question.