Courts are still not generous when awarding compensation for services rendered for personal care to a caregiver or even an attorney for personal care. It is still a labour of love.
In the recent case of Re Kalczynski Estate, Justice Ramsay had the chance to change this. One of three daughters named as attorney for personal care looked after their mother and house. She was also the attorney for property. The mother also appointed this daughter her sole estate trustee and traditionally left her estate equally to the three daughters. The mother also lived with the attorney daughter for a period of time before she developed dementia and had to be moved to a nursing home.
After the mother died the other two daughters asked their sister to pass her accounts as attorney (and estate trustee). This revealed that the daughter had charged $12.00 an hour (translated to $3,700 a month) to take care of her month plus room and board for when she lived with her of $1,000 a month. On the fact very reasonable and far less than what would have been paid for a PSW or retirement home and without taking into account that added non pecuniary benefits of the mother remaining in familiar surroundings.
The court disagreed focusing on the “conflict of interest” position of the daughter stating that because of this conflict created by the hiring of herself any payments made needed to be “closely scrutinized”. He reduced the fee to $1,500 a month for care and $500 a month for room and board and ordered the repayment of $65,000 to the estate.
What this decision fails to recognize is the intangible benefits this service rendered and that the costs were in fact reasonable when measured against the open market. What this and similar decisions have done and will do is force family members to either render care to their parents as a labour of love, or spend more money by hiring outside family strangers to do the care. Heaven help us if next the courts will determine that faced with this choice that the attorney should not have hired (at more expense) the third party care and order the attorney to pay personally for that care – this in effect is what this decision does.
Lesson Learned: Acting out of labour of love or for “market” rates should be respected and honoured by those family members who chose not to render care or become involved and shame on them for criticizing the efforts and costs after the fact.
Until next time