Should family members expect to be paid for care they provide to ailing seniors? What if the care allows their loved one to stay at home, reduces the cost of long-term care (to both the senior and the government), and makes the senior’s life more comfortable and happy? Does it matter how closely the caregiver is related, or what other close family members are (or are not) doing? All these questions are posed to elder law attorneys on a regular basis. A recent Nebraska case suggests at least some partial answers.

Dorothy Corbin managed to stay in her Omaha home until the last two months of her life. According to her niece, Johnnie Murdock, that was possible at least in part because Ms. Murdock was helping with grocery shopping, running errands, transporting Ms. Corbin to appointments, taking care of her pets, and overseeing her health care and hygiene. In fact, according to Ms. Murdock, she had been providing caregiver services for Ms. Corbin for at least seven years before her death. That was why she filed a claim against Ms. Corbin’s probate estate seeking $300 per month for 97 months of assistance.

Ms. Corbin’s daughter Deborah, who had been appointed personal representative of her mother’s estate, denied the claim. The two women ended up presenting their case to the local probate judge, who took testimony from Ms. Murdock about what she had done for her aunt. Deborah Corbin did not testify; she lived in New York, and had not been actively involved in her mother's care during her last months.

Ms. Murdock courtroom testimony modified her claim somewhat. Noting that a paid caregiver had been involved in Ms. Corbin’s care for the last two month of her life, and that the caregiver had received payment of $10 per hour, Ms. Murdock argued that she should be entitled to a similar wage from Ms. Corbin’s estate for the months when she was providing nearly fulltime care. The probate judge agreed, finding that she had worked for twelve hours per day for some or all of the last five years of Ms. Corbin’s life. Although her earlier help might reasonably be presumed to have been voluntary, said the probate judge, the much more extensive care she provided after Ms. Corbin’s first hospitalization should be compensated under the legal theory known as quantum meruit, and he awarded her a little over $18,000 for her services.

The Nebraska Court of Appeals disagreed. The appellate court relied on the law’s presumption that services provided to family members are intended to be gratuitous unless there is evidence that there was some other agreement. Ms. Murdock would therefore need to show that she and her aunt discussed payment. Ms. Murdock’s failure to even keep a log of hours she worked also suggested that at the time the work was done she did not think she would be paid—then or later. Not only did the appellate court reverse the compensation award, it also ruled that Ms. Murdock had not presented any evidence to support her assertion that she had contributed $250 to preparation of food, thank-you cards and rental of the local church fellowship hall for Ms. Corbin's funeral. Estate of Corbin, May 15, 2007.

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