Will our personal care agreement without bothering with a notary be sufficient?
Mom has dementia - I have been taking care of her for the past 5 or so years and working FT but have had to cut back to PT as she is requiring more care now. I never planned on having her pay me but I really can't afford to do it otherwise. She was always adamant in the past about wanting to stay at home if possible so I don't really want to put her in a nursing home--she'd fight tooth and nail anyway. I am her POA. I have a personal care agreement I found on nolo.com and have filled it out. I'm only asking for a small amount, much less than what she would have to pay someone else. Here's my concern: At the bottom is a place for her to sign and for the caretaker (me) to sign. In the moment, if I explain to her what this is about she will readily agree, saying, "oh yes, that is very fair, I want to do this." HOWEVER, each time (I have brought it up several times already) she will forget what we had talked about and at first she will say things like "what? I don't need any help (she very much DOES) - why should I pay someone?" And of course after I explain the entire situation she then agrees. The question is....does this form need to be notarized? If I had to take her to a notary it could end up being quite embarrassing or worse if she says something like, "I'm not signing that, I don't need any help." LOL. The reason I ask is I know I will now have to claim this income on my taxes (and she will have to as well, claim the payment that is). Will our personal agreement without bothering with a notary be sufficient? I CAN get her to sign it at home, but of course she will never remember signing it. Not sure if I even need to worry about it, but I'm hoping I don't need to have it notarized. Thanks in Advance for any advice!
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The fact that you recognize your mother "will never remember signing it" speaks to the validity of any contract or anything else she might sign.
Notarization has no bearing on reporting the income when you file taxes, or perhaps I misunderstood that statement.
And FYI, notarization is required in a lot of legal documents, but in some cases it means nothing. When I worked for litigation lawyers, it was routine to ask clients to sign and return certain pleadings, then one of the secretaries was expected to notarize it, without ever having met the client or know for sure that it was in fact the client who signed it. So in my opinion, notarization means nothing.
I have the feeling though that there's another, unspoken issue with your concern for notarization. Are there family members involved from whom you want to protect yourself and you feel the notarization would verify that your mother was willing to execute the agreement?
Others who have caregiver agreements can share their experiences but that doesn't mean that the experience are the same or that their advice is legally right.
Your case is NOT simple. In your initial post, your first statement is:
"Mom has dementia " Your mother cannot legally sign a caregiver agreement. It won't be valid nor will it be binding.
"Personal care agreements typically must include the following to avoid the transfer of money being deemed a gift:
..."•Be signed by both the parent and the person agreeing to perform the services (if the parent is unable to sign due to mental incapacity, have the agent under a durable power of attorney sign on the parent's behalf)"
I see your point; however, given that you're designated as having the power under the DPOA, you're essentially signing an agreement on behalf of your mother, but which benefits you. That is a conflict of interest.
Honestly, it wasn't my intent to upset you. I just wanted to caution you. I can understand your dilemma. This is in part why I also think that you need an attorney to advise you, as I'm not sure that what you want to accomplish can be done.
If it can't be done, wouldn't it be better to know now than later? Even if your sister agrees now, that may change in the future, and your brother may also become involved. If you're benefiting from a contract you signed, that just opens up avenues for accusations.
It's unfortunate that a situation like this has arisen, and I hope that anyone who's considering a caregiver contract learns from this situation and takes action before it's too late.
I wish I could offer other suggestions but at this time I don't have any.
If you do want to consult an attorney, contact either the Lemon Grove Bar Association or the California State Bar Assn. and ask how to get names of elder law attorneys.
Or start here: http://members.calbar.ca.gov/fal/MemberSearch/FindLegalHelp
You could also search under Estate Planning, which is the practice area with a broader focus, before Elder Law became a popular designation for a more limited practice area.
From personal experience in working at law firms, I've always found the firms with an Estate Planning and/or Elder Law section are the best. You would have a choice of experienced (more expensive) attorneys vs. younger attorneys (less expensive). Younger attorneys who've just passed the bar are supervised by more experienced ones. Those who've been practicing a few years are generally good choices.
There might even be legal clinics sponsored by local law schools, although you wouldn't get the breadth of experience that you would from a law firm with a major EP/EL practice.
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