Personal Care Agreement Explained
A personal care agreement is an individualized process that begins with a written or oral understanding between someone in need of care and a family member or loved one. The agreement covers a wide variety of issues including what services will be provided, when they will be provided, how often they will be provided and any compensation that may be required. These agreements are also sometimes referred to as family caregiver agreements and can take different forms that make sense for the unique needs of the parties involved. In most situations, the caregiver is not a licensed professional, so it is extremely important for both parties to acknowledge whether they expect services to be performed by a licensed professional. If that is the case, it is also very important to include the particulars for what, if any, supervision or oversight the licensed professional will have over the caregiver for any services to be performed. This is especially true in scenarios where an individual performing the services may not be up to date on current professional standards or even permitted to perform any number of services, such as giving medications . Due to these requirements, some family care agreements do not specifically outline compensation to the caregiver, while others do. These types of agreements can be legally enforceable, but they must also be reasonable. For example, an agreement that offers a specific rate for performing required services can be reasonable, but only if the compensation is for a market value that is not inflated. In addition, compensation can be set based on the availability of other individuals to perform the work. Personal care agreements are extremely valuable to all those involved. For the person receiving care, it provides a customizable plan that reflects their unique needs. For the caregiver, it defines expectations, creating predictability regarding time commitment, compensation and responsibilities. Ultimately, a well-written personal care agreement can help create stability in the lives of people receiving care, as well as caregivers.
Legal Obligations for Personal Care Agreements
While a written agreement is not necessary for a personal care arrangement, it is always best practice to document the extent of care that the caregiver is expected to provide. And while notarization is generally not necessary, there are certain situations where it may be prudent to have it done.
Currently in Pennsylvania, there are no statewide requirements for a personal care arrangement to be in writing, nor is there a requirement for the agreement to be notarized. Disputes regarding the existence or terms of such an agreement must be determined under contract law. To the extent that a jurisdiction and its courts require a type of agreement to be in writing under statutes governing health care representatives or other surrogate decision-making, failure to have a written agreement could result in a finding that a caregiver is owed nothing for services provided.
In most cases, however, caregivers are providing services for loved-ones, and unless a dispute arises, legalities are the last thing on their mind. Despite the lower priority that legal aspects may play when taking care of a loved one, it is still wise to at least discuss such considerations. Failure to have a written or notary-certified agreement could make an already difficult situation more complicated.
Considerations regarding notarization or the need for a written agreement to dispute a claim for payment.
Why Notarization Matters for Legal Documents
A Notary Public is a person who is authorized under state law to certify signatures on certain legal documents, attesting that a document was actually signed by the person whose signature it bears, and that the person acknowledged having done so voluntarily. Notary services are generally available at banks and credit unions. There is usually a modest fee for notarization ($0 to $20).
A notary is required under the law to keep a register of notarizations, which is open to inspection on request by (for example) the police or the court. One function of this is to avoid fraud, e.g., by authenticating documents signed by a person who has died.
Though notarization is not essential for a Personal Care Agreement, it rarely hurts to have it done. This can provide extra peace of mind, especially if the provider is taking on responsibilities. As mentioned above, a notary can be used if any portion of the PCA needs to be challenged or disallowed for some reason, such as mental competency. A potential challenge could focus on the ability of the older adult to understand the consequences of signing the PCA. Notarization in that case could help bolster the argument that the PCA is valid.
Notarization and Personal Care Agreements
Although notarization is not ordinarily required, there are limited circumstances when personal care agreements must be notarized. Any person authorized to give consent for a substitute decision-maker under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 ("SDA") must give consent in writing if it is given by a person who is not a relative. An example may be where an adult child attempts to give consent on behalf of a parent. Although the Consent and Capacity Board ("CCB") interpreted "in writing" in the SDA to mean that the person giving consent simply journalize their agreement to the plan, the CCB appears to have been overruled by the Superior Court, as set out below.
The court in Gignac v. Gignac Estate, 2015 ONSC 3901 (CanLII), held, at paras. 77 and 78:
77 Under the SDA, all consent required by the statute is to be in writing. There is an exception for the consent given by a person authorized to give consent on behalf of a mentally incapable person who is also the parent, spouse, sibling or child of that patient.
78 All other consents must be in writing. This includes the consent contained in the Personal Care Agreement. There is no exception where that consent is given by a family member. Parliament made that choice. It chose to require all consents to be in writing rather than to restrict the requirement to those consents not given by a family member. The law must be interpreted as it was drafted, not as it might have been. Parliament could have created this exception but it did not. Such is the reality of statutory drafting. As this analysis was applied to consent under the SDA, there is a possibility that it could be extended to notarization requirements under the Health Care Consent Act, 1996, S.O. 1996, c. 2. It is suggested that any personal care agreements entered into by a person authorized to give consent on behalf of a substitute decision-maker should be notarized. Although not expressly addressed in the regulation, the definition of "personal care" includes "a person’s dietary needs and preferences". Notarization may also be advisable in light of the certainty which follows, in the event that the personal care agreement is the subject of scrutiny at CCB.
The Advantages of Notarizing a Personal Care Agreement
When a caregiver and elderly individual make a personal care agreement even a notary public may be able to make the deal more legal and binding using a form of attestation. In addition to verifying the identity of and validating a caregiver, notarizing a form of personal care agreement may have benefits such as: Notarization allows parties to draft cohabitation agreements or other contracts to remain enforceable in courts. Notarized agreements are helpful in situations where power of attorney is not effective or does not meet the needs of a family. Notarization may prevent legal issues when there has been informal care given in exchange for care or money. In such circumstances enforcement of an institutional contract or treatment may be at risk. Even if a care agreement has been written by a family member, a similar level of assurance is provided by a notary. Whether or not the personal care agreement to be notarized party has been reviewed by an outside reviewing party, having a deal that is notiary-rechecked can be worthwhile. Although not all personal care agreements are required to be notarized in order to be enforceable, it may be a good idea to have a document notarized in order to address issues that could arise later. A person should always seek legal advice if they have any questions or concerns.
How to Notarize a Personal Care Agreement
While not all states require a personal care agreement to be notarized, it is good practice to do so. Notarization protects all parties involved, and makes the agreement a legal contract. Furthermore, if the personal care agreement ever needs to be presented to the court for any reason, notarization provides irrefutable proof that the agreement is authentic. As such, notarization is advisable if the family caregiver will be paid from the assets of the individual or spouse in need of long-term care.
This is a simple process that can be completed in a few steps:
- Arrange to meet with a licensed notary public. Notary publics are available through banks, major public offices , or as a private notary service either remotely or in person. A notary public can either meet you in person or over a Skype-type video connection.
- Sign the notarial record in the presence of the notary public. The notary public may verify identity through an ID, utility bill or other formally issued government document, and may also ask you to provide identification or samples for a fingerprint.
- Submit the notary log in accordance with the notary’s instructions, or maintain a copy of your log for your records.
If you are unable to find a notary public, be sure to check with your bank. While some notaries require payment, most banks provide notary services free of charge.
Frequently Asked Questions About Notarization
You may have found yourself wondering before: does a personal care agreement need to be signed in front of a notary? The answer is that it depends. For example, in my law firm’s area of practice, which focuses mostly on senior law issues and elder law issues, we do typically have personal care agreements notarized. This is largely for practical reasons, because notarization can make it easier should the Agreement be challenged at a later time. Most disputes are far less likely to happen as between a parent and an adult child than they are to occur as between siblings or other family members.
In addition to this common scenario, there are other circumstances where the answer to whether a personal care agreement needs to be notarized or not is simply "maybe." Some examples include:
Frequently Asked Questions:
Does a personal care agreement have to be notarized according to Michigan laws?
No, there are no specific legal requirements regarding whether or not personal care agreements need to be notarized in Michigan. Although it’s a good idea, it’s not generally required by law.
Will notarization of a personal care agreement create a gift tax issue?
Generally speaking, personal care agreements (as part of a larger estate plan) can actually help minimize taxes for an elder in Michigan. However, if the terms of the agreement are not clear, or if the amount of income listed as being paid in the Personal Care Agreement is inconsistent with the Michigan Medicaid Allowable Monthly Expenses and Debt Chargeable Against Income rules, there could be an issue that arises. Notarizing such an unclear Agreement might only serve to create further trouble for the elder at an already difficult time, if a long-term care planning strategy is not previously in place.
Can a personal care agreement be notarized by a notary public or must it go through probate court?
Generally speaking, a personal care agreement can be notarized by a notary public or printer’s notary made available at a bank. If the agreement is going to become binding, however, then such an Agreement needs to be followed and adhered to. Sometimes, powerful steps like medical intervention, guardianship proceedings or court intervention is required to get compliance.
Alternatives to Notarizing a Personal Care Agreement
While notarization can be an important step toward solidifying a personal care agreement, it may not be the only option. If the notary is unable to make a visit or if the individual has not been able to locate one, there could be some other steps that might help create the same protection and legal standing for the agreement. One option may be for the client and family member to both sign the contract in front of the same witness. It should be a neutral witness, preferably someone outside of the immediate family who is capable of explaining the contract. Just as with notarization, the witness will sign the agreement and certify they saw the parties sign. Another way to firm up the personal care contract is to have the client file it at the county clerk’s office. This is not a legal requirement, but it is a good idea to provide protection in case a family member or a third-party later claims that a contract was not valid in order to get back the money for unpaid services or expenses. Another way to provide assurance is by saving all correspondence along with the contract. Everything involved with the contract should be collected into a single file that includes notes on services, receipts, payments, invoices, and other documents that support the contract and the work performed. Documentation may be useful legal evidence in case there are issues in the future. Although notarization may be required in order to be legally valid in some jurisdictions, other options might be sufficient to protect the contract and provide as necessary legal standing.
Conclusion and Best Practices
In summary, the necessity for notarization of a personal care agreement is not universally regulated but is typically determined by two factors: the laws of the state in which the patient resides and the policies of the specific facility or service provider. It is important for both parties to a personal care agreement to understand their state’s requirements, especially when entering into agreements with those who will care for loved ones at home, in a facility, or even temporarily. Depending upon the state , failure to have a personal care agreement duly notarized may put the agreement at risk of being un-enforceable in court. It is recommended that individuals drafting such an agreement be informed on all local and state requirements and have a notarized agreement memorialized.
Individuals entering into a personal care agreement or organizing their family’s medical needs should be aware that more complex decisions may be required as time goes on. It is recommended to contact an attorney for assistance in drafting and notarizing an agreement to ensure your needs and best interests are being met.