103 Iowa L. Rev. 1997 (2018)

Download PDF

Abstract

Caregivers are key recipients of property transfers, both intervivos 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 individuals are often not compensated for providing daily care for their relatives, many family caregivers receive bequests larger than their intestate shares of the care recipient’s estate. On the other hand, when 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 how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. 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. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages 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 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 United States, a model funded exclusively by public money is probably impossible.