What to Consider When Employing In-Home Assistance
Hiring a caregiver seems simple.
Dig down, and there are a host of considerations and responsibilities to weigh before making this decision.
By Lawrence A. Frolik, JD
Many older adults need personal assistance to age in place. Arranging for adequate personal care can be the difference between the individual remaining at home or being forced to move to supportive housing, such as an assisted living facility or nursing home. When considering in-home care, correctly assessing an individual’s care needs and finding appropriate sources of care is critical. These sources often include a family member, a private caregiver, or a caregiver hired from an agency. The choice can be complex, involving family dynamics, budget, care needs, personality, and reliability.
Spouses and family provide the needed care for many of these people. Of course, not every older person has a spouse or family member(s) able to assist him or her. And many spouses and adult children do not have the time or ability to provide home care. Some older persons suffer a decline in health to such an extent that a relative is no longer able to provide the quantity or type of care required. Whatever the reason, many older persons who live at home find it necessary to hire professional personal care and assistance.
Personal Care Levels
Personal care can be thought of as fitting into one of three levels. Level one involves helping with activities outside the home, such as driving the older adult to a doctor’s appointment or helping to purchase essential goods, such as groceries. Level two consists of assistance in the home that may involve care of the person, such as dressing or bathing, but not rising to the level of health care. Finally, the third level comprises personal care that includes the provision of health care, such as assistance with medications.
No matter what level of care someone requires, it’s critical to have a protocol around the caregiver’s health. In the age of the coronavirus, a serious conversation about expectations is crucial no matter if the caregiver will be coming from an agency or hired privately. Care agencies should be able to give detailed explanations of their requirements for employees. When hiring a private individual, a plan should be adopted that follows current best practices for preventing disease (Arbaje, n.d.). Many variables have to be considered, some of them dependent on the level of care required.
LEVEL ONE: HIRING A DRIVER/TRANSPORTATION AIDE
Older persons who require assistance with transportation may be able to hire a driver. Alternatively, instead of a driver, the person may prefer a transportation aide who will help him or her use a service such as Uber, or even public transportation. Whether a driver or a transportation aide, if the older person only needs help outside the house (such as getting to a doctor’s appointment) but the terms of employment. Compensation can either be by the hour or by the week, with a maximum number of trips and hours per week, plus additional hourly compensation if the driver works beyond the stated hours. The contract should say whether the driver or transportation aide is expected to accompany the older person into the destination building, such as a doctor’s office or grocery store, and whether the driver or aide is expected to remain with the older person, or leave and later return to take the person home.
The contract should also make clear whether the driver or aide is expected to provide other assistance, such as accompanying the older person as he or she shops for groceries. Of course, the driver or aide may be willing to do more than required by the contract, such as picking up a prescription at a pharmacy drive-through, but it is best for both parties if the duties are clearly stated in the contract.
PROS AND CONS OF HIRING A FAMILY MEMBER
- There is already a loving relationship.
- The person is well known.
- Most family caregivers find the experience rewarding (Cision, 2007).
- Cost may be lower.
- The danger of burnout is high.
- It may ignite bad feelings among siblings. High expectations of self can trigger caregiver guilt.
- There is a risk of injury.
LEVEL TWO: HIRING IN-HOME CARE
If the older person requires in-home care, the first step is to determine just what kind of care is required. As with level one care, the duties the companion will provide should be made clear. Someone to accompany the person on short walks? Help with food shopping and meal preparation? Assistance with getting out of bed in the morning, taking a shower, and dressing — fastening buttons and zipping zippers? Doing laundry? Light housekeeping? Making sure prescriptions are taken? If the older person owns a pet, is a companion needed to walk the dog or clean out the cat’s litter box?
Once a complete list of work requirements has been created, the older person, perhaps with the assistance of a family member, can proceed to hire someone. The aide can be hired directly or through an agency that employs a number of home aides. Although hiring the aide directly may be less costly, it is usually a bad idea (Szlauderbach, 2020).
Not using an agency and hiring directly poses risks. Ihe aide must be vetted for prior criminal behavior, which is not easily done. The older person must judge whether the potential aide has the training and temperament to carry out a range of tasks. References must be obtained and checked, keeping in mind that prior employers may have died or be reluctant to
provide honest criticism. Liability insurance must be obtained in case of theft or property damage, or if the caregiver accuses the older person or someone else of assault while on the job. The property may already be covered through current homeowners insurance, but
it’s imperative to check the policy (Rosant, 2017).
If the aide is hired directly, the aide is most likely an employee of the older person. IRS considers a person to be an employee if he or she is paid more than $2,100 per year for 2019 (Paying for Senior Care, 2019). As an employer, the older person has significant obligations. An employer must withhold and pay Social Security taxes, withhold federal income taxes,
possibly withhold state and local income or wage taxes, and pay unemployment insurance. These obligations alone are enough to make many older persons prefer to use an agency, which, as the employer, must perform these duties.
Hiring Through an Agency
An agency has already vetted its aides and can provide additional hours or added duties if necessary. Sometimes, this need arises quickly and unexpectedly, as in the case of this older couple who moved to a condominium:
As they aged into their eighties, Jeff did well but his wife, Anne, began to exhibit signs of dementia. Their son began to visit them two or three times a week to help his father care for his mother. After a few months, Anne’s dementia became more pronounced. Jeff and his son contacted an agency to supply a caregiver to spend the afternoons with Anne. The caregiver cleaned the apartment, took walks with Anne, and prepared dinner for the couple. Things were going well until Jeff suddenly died from a stroke. His son immediately arranged with the agency to provide 24-hour-a-day assistance for Anne. That assistance continued for almost two years, until she died.
An agency will vet and train its aides, insure against property damage or theft, and insure against physical injury to the cared-for person or any third party. The agency should do a background check on all aides, including ensuring that they don’t have a criminal record and haven’t previously been fired by another agency. A backup can be provided if a designated aide doesn’t show up or needs to take time off. The agency should also be alert to the need to change aides if the care needs of the older individual become greater in scope than the current aide is able to provide (Hurme & Frolik, 2020).
Choosing an Agency
Selecting an agency is fairly straightforward. It must be properly licensed and able to supply an aide who can give the type of care needed. The agency should be able to provide references for the aide, including contact information of past and present clients. The older person will be asked to sign a contract that should correctly state the services to be provided, the compensation terms for the aide, and the right of the older person to reject any aide with whom that person is incompatible. The right to choose and, if necessary, reject, an aide is critical. Personal chemistry between the aide and the older person is often as important as the other qualifications.
After making a choice, the older person should select another individual outside of the agency to monitor the quality of the aide and see to it that he or she is performing as required under the contract. The monitor could be a relative or a friend. Ideally, this person will have a personal concern for the welfare of the older adult. The monitor also must spend enough time with the older person when the aide is present to be able to assess the aide’s performance. The older person’s opinion, such as, “Oh, everything is fine,” should not be relied upon. Many older people are reluctant to criticize an aide because they do not want the aide to get into trouble, or the older person does not want to be seen as a complainer.
LEVEL THREE: HIRING FOR IN-HOME HEALTH CARE
If the older person requires in-home health care, the most sensible alternative is to contact an agency that provides aides who are qualified to administer the required medical care. A full 97 percent of those requiring home care in the U.S. need help bathing, and another 91 percent need assistance transferring in and out of bed (Elflein, 2020). Without training, performing these tasks can endanger the well-being of family members trying to help. The agency should start by evaluating the person to receive care. Based on the results of that evaluation, one or more caregivers will be chosen. That may be a registered nurse or it may involve more than one aide, such as a nurse to handle medical procedures and another aide to take care of other duties involving personal care, including bathing, dressing, and eating. In fact, in order for the older person to stay at home, a team of aides may be necessary. This team might consist of a nurse, a personal care aide, and someone to run errands and provide transportation, such as driving to doctor appointments.
In the past, a stay-at-home, infirm person was seen as being quite isolated and cut off from the larger world. Today, with the profusion of home delivery services, those who are housebound have access to almost the goods and services that they may need. Depending upon their mental and physical capabilities, these older adults may be able to manage a fulfilling life by ordering groceries and medications, having prepared meals sent to their door, and choosing clothing, books, and other products online or through catalogs or delivery (Golant, 2017). A host of entertainment choices are available on cable television. Even face-to-face family visits can take place on a smartphone or computer by using Zoom, Facetime, or other free apps. And telemedicine can take care of routine medical check-ups.
Although almost anything is available online or by phone, the process of using technology can be frustrating to some older people. Family members can be immensely helpful by assisting Mom or Dad. Sometimes, careful step-by-step instructions may be sufficient, but often, actually carrying out the task will be necessary. If no family is available, an aide should be hired, perhaps a college student. Tie aide can ensure that the older person is able to take advantage of all that technology has to offer someone unable to leave the house.
Employing a Family Member
Employing a Family Member
Many older adults have family members who may be willing to act as paid personal aides. More than 44 million Americans served as family caregivers in 2019, according to a report by the National Care Alliance (2020). Other than from a spouse, caution should be used before accepting such an offer. Too often, family members do not realize the extent of time and effort that will be required. They may also not conceive of the possible day-to-day frustration of spending time with an older person and seeing to many small, irritating tasks, ranging from helping the person dress, to driving to doctor appointments and sitting for long periods in a waiting room. And even if all is well and good to start, the older adult may have a chronic or acute disease that worsens his or her condition, or a fall may be debilitating. Care levels rarely remain static for long.
Even adult children who provide care to a parent sometimes fail to fulfill their promise to properly care for the parent. If the child’s failure results in serious harm or even death to the parent, the child may be prosecuted, which happened to the daughter of a 76-year old woman who suffered from depression following the death of her husband. The mother did not take care of herself and was morbidly obese. Her daughter moved in to assist her mother. One day the mother fell and could not get up. The daughter, who could not lift her, waited for five days to admitted call the fire department for assistance. After being admitted to the hospital, the mother died of sepsis (State of New Hampshire v. Saintil, 2019). “the daughter was prosecuted for negligent homicide.
If a child volunteers to care for an ailing parent, the child has a duty to provide proper assistance. In 2014, a Missouri court held that a woman, who was a certified nursing assistant and had worked in a nursing home, was guilty of elder abuse. The woman had failed to provide adequate care for her 81-year-old mother, who was a stay-at-home, infirmed person due to advanced diabetes and suffered from bedsores so serious that she had to be taken by ambulance to the hospital, where she died soon after (State of Missouri v. Gargus, 2014).
Additionally, the caregiver can be injured. Even trained home health care service caregivers get overexertion injuries at a rate of 183 per 10,000, one of the ten highest rates among several hundred industries surveyed by the Bureau of Labor Statistics (1994). In fact, caregivers have one of the highest rates of back injury of any profession (Family Caregiver Alliance,n.d.), with 12 percent leaving the career each year due to back pain and over 52 percent citing back pain as a result of their job.
The older person, if at all possible, should pay the relative. “Volunteer burnout” is all too common when the caregiver agrees to help without understanding the time and energy that will be required. Over time, the caregiver may come to resent the obligation of providing free care, or the caregiver may simply be emotionally or physically unable to perform the duties required (Matthews, 2019). Plus, the older person, who might be reluctant to complain about how a volunteer relative is performing, may be more comfortable telling a paid relative how to provide better care.
If the relative is paid, the older person is likely an employer and must file the required forms, pay unemployment insurance, and withhold and pay federal and state income taxes and Social Security. The older person must also purchase liability insurance. In short, paying a relative is no different than paying a stranger.
If the relative suggests that the arrangement should be informal and “under the table,” the older person should hold firm. He or she is an employer, the relative is an employee, and the compensation is taxable income.
PROS AND CONS: AGENCY OR PRIVATE CAREGIVER
Hiring through an agency:
- The agency performs a background check and verifies certification and experience.
- Payroll and schedules are managed by the agency.
- Workers compensation, liability insurance, and tax withholding are done by the agency.
- Most agencies require continuing education for caregivers in their employ, some of which are regulated by state requirements.
- The agency will provide a replacement if someone is sick or doesn’t show up.
- The agency is insured for liability if its employee damages or steals anything on the job.
Hiring a private caregiver:
- The person hiring has total control over who is doing the caregiving.
- Communications are direct, rather than through an agency.
- There is more freedom in determining caregiver duties.
- A private caregiver often costs less than one hired through an agency.
Hiring through an agency:
- Agencies are often more expensive.
- There’s no guarantee who will show up day to day.
Hiring a private caregiver:
- The individual hiring must perform due diligence by checking background, references, and doing payroll and taxes.
- The person hiring needs liability insurance in case someone in the home is accused of assault or harassment by the caregiver. (This may be covered by an existing home insurance policy).
- There is no outside entity to help supervise, manage, and perform administrative tasks.
The above information comes in part from Szlauderback (2020).
If a relative is hired, an employment contract should be created and signed. It need not be as detailed as a contract with a nonrelative aide, but it should set out the compensation, such as the hourly or daily rate, and a general description of the duties to be performed. Nothing clarifies what is expected of employees like a written description of their duties. The relative needs to appreciate what the duties will be, and the older employer needs to clearly understand the extent and kind of assistance to expect, and at what cost.
A written contract is also highly desirable if the older person should later enter a nursing home and apply for Medicaid to help pay the cost. application for Medicaid will require the older person to reveal all transfers of assets to others over the past five years. If there was no employment contract, the payments to the relative may be challenged by the state Medicaid agency as being gifts, which could result in a period of ineligibility for Medicaid. A written contract, along with documentation of the hours of work performed, will support the claim that the money was paid for services and was not a gift. Absent a written contract, that assertion may be difficult to prove. However, if the payments are reasonable in light of the services provided as stated in the contract, the payments will not interfere with the older person qualifying for Medicaid (Frolik & Brown, 2020).
For many older adults, aging in place is the goal. Whether in a house that has served as home for decades or a condominium that they moved into last year, older adults want to stay where they are, be as independent as possible, and avoid institutional living. Aging in place is possible, but for many that can only be achieved with assistance. If done right, assistance for an aging person can mean greater independence and autonomy. Those who advise older persons and their families must see that in-home care enriches, not diminishes, the life of the older person.
Lawrence A. Frolik is Professor of Law Emeritus, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania. Among his books are: Wise Moves: Checklist for Where to Live, What to Consider, and Whether to Stay or Go with co-author Sally Balch Hurme (AARP and ABA, 2020), Residence Options for the Older or Disabled Client (ABA, 2008), and Advising the Elderly or Disabled Client with co-author Melissa Brown (Warren, Gorham, and Lamont, 2d ed. with semi-annual supplements). Lawrence can be reached at firstname.lastname@example.org.
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