Loosening the Wrapper on the Sandwich Generation: Private Compensation for Family Caregivers

• Author: Heather M. Fossen Forrest
• Pages: 381-409

Page 381

I wish to express my sincerest thanks to my faculty advisor, Professor Lucy McGough, for her invaluable advice and guidance, especially in drafting the proposed statute.

The impending convergence of several demographic, economic, and social trends in the United States . . . is beginning to raise public concern over the need for future long-term-care healthcare policy direction. The demographic trends (the graying of America) are well understood. Changing family structure, a more mobile American society, and other economic and social trends portend a need to recognize the role of [the] informal care giver as both a desirable and critical component within the long-term-care network. Decreased births and increased longevity, a steady increase in the divorce rate, and the entry of increasing numbers of females into the labor force may all affect the future size and capacity of the informal care network in the United States. ¹

I Introduction

One night, when I was an arrogant teenager, I sat at the table with my family eating dinner. As usual, I was complaining about the meal, as well as stupid family rules like having a curfew. At the end of my tirade, my father, unfazed, said that he could not wait until he and my mother were older and living with me. Then, they too would complain and express their undying ingratitude, much as I had done. Being the ever doting daughter, I professed, "I'll just put you in a home." Little did I know that providing care for the elderly would become a major challenge faced by society in my adult years.

The aptly dubbed "graying of America"² raises several concerns regarding long-term healthcare for the elderly. We would all like to remain healthy, active members of society, but the sad reality is that many elderly Americans require long-term healthcare. Although the desire to remain at home is strong among older Americans, few have the financial resources available to finance long-term professional in- home healthcare. As a solution, families will oftentimes attempt to provide the services themselves, rather than utilizing professional care.³ Thus, as will be demonstrated herein, a vast number of elderly Page 382 Americans rely on family caregivers.⁴ Unfortunately, this option raises significant financial concerns for those family caregivers. This comment will present evidence that family caregivers often receive either less than adequate compensation, or no compensation at all for the support they provide.

A majority of states do not have legislation allowing family caregivers to make claims against the estates of the care recipients.⁵Furthermore, the cases demonstrate that a jurisprudential rule has developed severely restricting the ability of family caregivers to recover any compensation whatsoever. Therefore, state legislation is necessary in order to protect the interests of these providers of care for the elderly.

Though compensation may take many forms, this comment focuses only on monetary compensation via claims against the estates of elderly care recipients.⁶ Part II of this paper illustrates that compensation of family caregivers is a problem that must be resolved. Part III offers a brief discussion of public versus private incentives for family members to provide care to their elders. Although public incentives are valuable and necessary, they do not go far enough. Next, Part IV explores a phenomenon referred to as the doctrine of non-recovery, including a look at both the common law and Louisiana civil law approaches to compensation of family caregivers. Part V examines a unique solution to the problem adopted by the state of Illinois: a statute providing family caregivers with an express right to file a claim against the estate of the deceased. Finally, Part VI offers a solution that provides an incentive to family members to continue providing long-term home healthcare by rewarding family caregivers for their sacrifices.

II The Need For Compensation For Family Caregivers

From 1987 to 1997, the number of Americans age 65 and older grew from 28 million to 34 million, an increase of 21%.⁷ The vast Page 383 majority of older Americans prefer to live their remaining days at home, or at least outside of a nursing home.⁸ This desire, however, poses many problems for a large number of our nation's elderly population. The financial capability to obtain home healthcare is among these concerns. The cost of providing home healthcare for the elderly has been estimated at approximately $100 per day or about $36,500 per year.⁹ For many, this is simply not feasible.¹⁰

A common solution to this dilemma comes from within the elder's family. It has been found that more than 80% of all the care provided to older people is "informal," meaning it is provided by family members or other unpaid volunteer caregivers in the home rather than by professionals.¹¹ As a result of the many family members taking on the additional title of family caregiver, the "Sandwich Generation"¹² has emerged. Members of the Sandwich Generation are people who have been "sandwiched" between the responsibilities of caring for their own children still living at home and the responsibility of caring for their aging parents.¹³ This situation raises many concerns for the caregiver, including lost employment opportunities, financial strain, and emotional stress.¹⁴

It has been estimated that between 1987 and 1997 the number of caregiving households in America grew from 7 million to more than 21 million, a staggering increase of 278%.¹⁵ It has also been predicted that the number of American households providing care to the elderly will grow to more than 39 million by the year 2007.¹⁶ Page 384 Although this indicates that Americans are increasingly accepting the task of caring for their elderly relatives, there is still a need to provide further incentives for future generations to continue to provide the much needed care. Furthermore, the nation as a whole should recognize the significant role family caregivers play and the sacrifices they have made, by allowing caregivers to make claims against the estates of the care recipients.

By considering its effect on the family caregiver, one may better understand the impact of the increase in family caregiving. One area of concern is the employment status of the caregiver. It has been estimated that over the next 10 years, the total number of employed caregivers in the United States will increase to between 11 and 15.6 million working Americans, which is approximately 1 in 10 employed workers.¹⁷ The employment status of the caregiver can have a drastic effect on the entire family unit. A working caregiver can "incur significant losses in career development, salary and retirement income, and substantial out-of-pocket expenses as a result of their caregiving obligations."¹⁸ The average loss of wealth experienced by caregivers is estimated to be "substantial, averaging $659,139 over the lifetime."¹⁹ In 1997 it was found that the stress of caring for an aging friend or relative resulted in one-tenth of the caregivers giving up work permanently.²⁰ In addition, 11 percent reported having taken a leave of absence, and approximately 7.3 percent reduced their hours from full-time to part-time or took a less demanding job.²¹ Likewise, the period of time devoted to caring for a family member is not always temporary, and often lasts several years.²²

Not only do family caregivers suffer economic losses in connection with their employment, a significant number of caregivers spend their own money to provide assistance to their elderly Page 385 relatives.²³ Caregivers do not always keep track of how much of their own money they spend on caregiving during a typical month. However, those that do keep track estimate that they spend approximately $171 per month, which totals $1.5 billion per month spent out-of-pocket on caregiving nationwide.²⁴

Although the cost of providing care is significant to the caregiver, there is a great benefit bestowed on the whole of society. A 1999 study estimates that the economic value of the services provided by family caregivers would be close to $200 billion per year if the services were performed by professionals.²⁵ Arguably, the government would face a tremendous financial burden if family caregivers stopped providing care and the government was faced with no other option than to publically fund this type of long-term healthcare.

Finally, in 1992, surveys indicated that family support enabled approximately 95 percent of elders to remain in the community rather than in nursing homes.²⁶ However, concerns exist with regard to the ability and willingness of families to continue to provide this support in conjunction with increasing needs.²⁷ Most "family" care is provided by only one family member, rather than the entire family.²⁸It has been reported that "societal norms . . . have created a philosophical trend which shifts the perceived responsibility of family care from the family to the individual, thus suggesting that caregiving of family members is a voluntary venture."²⁹ Each state should...