Property Transfers to Caregivers: A Comparative Analysis

• Author: Adam S. Hofri-Winogradow & Richard L. Kaplan
• Position: Associate Professor, Hebrew University of Jerusalem, Faculty of Law, and Martin Flynn Global Law Professor, University of Connecticut/Guy Raymond Jones Chair in Law, University of Illinois
• Pages: 1997-2025

1997

Property Transfers to Caregivers: A

Comparative Analysis

Adam Hofri-Winogradow* & Richard L. Kaplan**

ABSTRACT: Ca regivers are key recipients of prop erty transfers, both inter-

vivos and testamentary. The law’s treatment of property transfers to caregivers

changes according to the caregiver’s rela tionship to the person cared for. Where

caregivers are related to care recip ients, the law generally favors the

structuring of property transfers to careg ivers as capital, rather than income

transfers. While the law accepts that individuals a re often not compensated

for providing daily care for their r elatives, many family caregiv ers receive

bequests larger than their intest ate 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 caregiv ers can raise a presumption of undu e

influence.

In this Article, we examine how the U nited States, Israel, and the United

Kingdom approach property transfer s to caregivers. The United States

authorizes the payment of public benef its to family caregivers only in very

restricted situations. The U.K. provid es modest public benefits to many family

caregivers. Israel incentivizes the em ployment of non-family caregivers but will

pay family caregivers indirectly when assistance from non-relatives i s

unavailable. All three jurisdicti ons rely on family caregivers work ing for free

or being compensated by the care rec ipients. We examine the adva ntages and

disadvantages of several approach es to compensating family caregivers,

including bequests from the care rec ipient, public benefits, tax incen tives,

private salaries paid by the care recip ient, and claims against the recip ient’s

estate. We conclude that while the provision of public benefits to family

caregivers clearly needs to be increased, at lea st in the United States, a model

funded exclusively by public money is pro bably impossible.

* Associate Professor, Hebrew University of Jerusalem, Faculty of Law, and Martin Flynn

Global Law Professor, University of Connecticut.

** Guy Raymond Jones Chair in Law, University of Illinois.

1998 IOWA LAW REVIEW [Vol. 103:1997

I. INTRODUCTION ......................................................................... 1998

II. COM PENSATING NON-FAMILY CAREGIVERS ................................ 1999

III. COMPENSATING FAMILY CAREGIVERS ......................................... 2002

A. COST OF CAREGIVING TO THE FAMILY CAREGIVER .................. 2003

B. TESTAMENTARY PROVISION FOR FAMILY CAREGIVERS ............. 2007

1. Possible Challenges by Other Family Members ........ 2007

2. Impact on Retirement Benefits ................................. 2010

IV. ALTERNATIVE APPROACHES TO COMPENSATING FAMILY

CAREGIVERS .............................................................................. 2012

A. FIRST MECHANISM: PUBLIC FINANCING ................................. 2013

B. SECOND MECHANISM: TAX INCENTIVES ................................. 2019

C. THIRD MECHANISM: FAMILY CAREGIVER AGREEMENTS .......... 2020

D. ADDITIONAL MECHANISMS ................................................... 2023

V. CONCLUSION ............................................................................ 2024

I. INTRODUCTION

Every country with an aging population faces the challenge of caring for

older people who require some assistance in performing the essential

activities of daily living—such as eating, bathing, getting out of bed, and

toileting. This assistance is usually seen as the point of entry into the spectrum

of long-term care, a range of services that begins with informal caregiving and

might progress to full-time residency in a caring facility. This Article focuses

exclusively on the initial stage in the long-term care continuum and examines

how caregivers are compensated for their efforts. In particular, this Article

addresses the dichotomous treatment of family and non-family caregivers.

Family caregivers generally receive no explicit compensation as they

provide care, even though this activity is typically a significant time

commitment and often imposes health risks as well as major costs on family

caregivers.1 Non-family caregivers, in contrast, ge nerally expect and receive

explicit compensation as they provide the required services and stand as

employees (either of the care recipient di rectly or through an independent

agency that contracts to provide the required service s).2 This apparent

discrepancy is somewhat ameliorated through testamentary transfers to family

caregivers when the care recipient passes away.3

1. See infra text accompanying notes 46–56.

2. See infra text accompanying notes 8–16.

3. See infra Part III.B.