Claims Against an Estate for Care Rendered to a Decedent

• Publication year: 2004
• Pages: 93

33 Colo.Law. 93 Colorado Lawyer 2004.

2004, November, Pg. 93. Claims Against an Estate for Care Rendered to a Decedent

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93

Vol. 33, No. 11, Pg. 93

The Colorado Lawyer
November 2004
Vol. 33, No. 11 [Page 93]

Specialty Law Columns
Estate and Trust Forum
Claims Against an Estate for Care Rendered to a Decedent
by Lindsey K. Warren, David W. Kirch, David S. Anderson

This column is sponsored by the CBA Trust and Estate Section The column focuses on trusts and estate law topics, including estate and trust planning and administration, elder law probate litigation, guardianships and conservatorships, and tax planning

Column Editor:

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726, dkirch@qwest.net

Lindsey K. Warren David W. Kirch David S. Anderson

About The Authors:

This month's article was written by Lindsey K. Warren, David W. Kirch, and David S. Anderson. They are, respectively, an associate, sole member, and law clerk of David W. Kirch, P.C., Aurora - (303) 671-7726, lkwarren@qwest.net, dkirch @qwest.net.

During a decedent's last illness, in-home care often is provided by a family member or friend. This article focuses on various legal arguments and issues that arise when the caregiver attempts to recover the value of his or her services from the decedent's estate.

It happens all the time. A senior family member becomes ill and insists on staying in the home. Funds are not available or liquid enough to pay for in-home care, which averages between $4,300 and $7,300 per month.1 Often, a child, other relative, or friend becomes the senior family member's primary caregiver, homemaker, nurse, and companion. Other relatives may not participate because they live far away, cannot afford to help, are too busy to assist, or simply choose not to be involved.

The time required and care the senior family member needs may be so significant that the person providing the care and services must take considerable time off work or quit a job altogether. The time frame for such extensive care may last from a few weeks to several years.

After the senior family member's death, it is common for such a care provider to face obstacles when attempting to recover from the estate. Other relatives may refuse to allow compensation, and the care provider may be forced to litigate his or her claim against the estate.

This article addresses the most common legal theories for recovery as a claim against an estate for the value of caregiving services rendered prior to a decedent's death. The article also addresses an unsettled legal issue regarding whether Colorado has an evidentiary presumption that services rendered by a family member are gratuitous. In addition, the article highlights evidence that courts have found persuasive when awarding compensation to a caregiver.

Finally, although this article does not address the issue, practitioners in this area should be sensitive to the possibility that the caregiver could have taken advantage of a confidential relationship with the decedent. In such a capacity, a caregiver has potential to unduly influence the decedent to make inter vivos or testamentary gifts.2

Overview of Terms and Causes of Action

Courts and commentators have notoriously blurred some of the key terms in this area of the law. For example, different terms may be used interchangeably; a term may not accurately describe the nature of the cause of action; and, in certain instances, the courts may look for similar facts to determine if the elements of the cause of action have been met.

Thus, as a starting point, but not to set forth the prima facie elements of a particular cause of action, this section of the article defines key terms used throughout. Each term or cause of action is more fully developed later in the article.

Express Contract: This is a traditional contract, with an offer, consideration, and acceptance. An express contract may be written or oral.

Contract Implied in Fact: A contract implied in fact is sometimes stated in the reverse, as an "implied in fact contract." Regardless of the phraseology, a contract implied in fact also is a contract - with an offer, consideration, and acceptance - but this contract is implied by the conduct of the parties, instead of their written or oral words.

Contract Implied in Law and Quantum Meruit: By contrast, a contract implied in law is not a contract. A contract implied in law is loosely interchanged with terms such as "quasi-contract," "quantum meruit," and "unjust enrichment," although it appears there may be slight variations on the actual definitions of these terms (the prima facie elements). Regardless of the exact term used, the idea is that where services are provided by one person and accepted by another, the law will imply a promise to pay to avoid unjust enrichment to the recipient. The Restatement (Second) of the Law on Contracts explains clearly:

Quasi-contracts have often been called implied contracts or contracts implied in law; but, unlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice.3 (Emphasis added.)

The interchangeability between the terms "quantum meruit" and "contract implied in law" is part of the reason for the confusion because quantum meruit often is used to describe more than just the equitable cause of action defined in the paragraph above. The term quantum meruit is Latin for "as much as he/she deserved." Quantum meruit is used to describe any of the following: (1) a measure of damages - namely, the reasonable value of the services rendered; (2) a claim or cause of action for the reasonable value of services rendered; and (3) a categorical title for equitable remedies, such as unjust enrichment and contract implied in law.

Further confusion is due to the fact that these causes of action, "contracts implied in law," ordinarily were enforced at common law. The same form of action is used that is appropriate for true contracts (assumpsit). In addition, the word "contract" is used in the name "contract implied in law," even though it is not a true contract. This article consistently uses the term "contract implied in law," unless the context otherwise requires one of the other interchangeable terms discussed above.

Express Contract

Without rehashing the first year of law school, an express contract is just that: it is "expressed" either in written or oral words between the parties. The usual requirements of offer, consideration, and acceptance are required to show there is a contract.

To demonstrate a breach of an express contract, it is useful to go to the Colorado Civil Jury Instruction ("CJI-Civ") 30:1 for the elements of liability. Of note to the practitioner is that the jury instruction requires that the elements of liability for breach of express contract be proved by a preponderance of the evidence.4 However, at least one Colorado Supreme Court case states that "where claimant seeks to recover from the estate of a decedent under an express...