When a family caregiver moves in to help mom or dad with in-home care, there are sometimes instances where that caregiver stays in the home, even after the parents have passed away. Encouraging the family caregiver to move out without a lawsuit was the focus of a recent meeting of the Professional Fiduciary Association of California, San Diego, or PFAC.
Fiduciaries are trusted advisors who may be hired by a client for financial assistance and trust/will administration, or the fiduciary may be appointed by the court.
The topic of this meeting was how to get adult children or other caregivers who haven’t been paying rent out of the house in a less confrontational way, so the house can be sold, and proceeds distributed according to the trust.
The speakers, Todd F. Stevens and Mark D. Feinberg, urged people to tackle the issue, if possible, before the parent passes away. Ask questions such as:
How long has the family caregiver lived here?
Do they pay rent, is there a written agreement or an oral agreement?
What does the family caregiver plan do to once the parent/home owner passes away?
The goal is to avoid litigation, and it’s important to closely follow the rules. If the person living in the home didn’t pay rent, the situation is known as a “tenancy at will”. The first step in the process is to give the tenant a 30-day notice to vacate. The attorneys recommended making the letter kind, provide a contact and phone number if the tenant has questions, and even considering cash for keys if they cooperate. Get the person to sign their own intent to vacate the property in exchange for any incentive, such as a cash payment to help them with a down payment somewhere else, plus another payment once they leave.
If the tenant was paying rent, then the notice must be 60 days to vacate.
There are some potential consequences for a caregiver or family member who refuses to leave a property after the homeowner dies. One might be a lower credit score and an “eviction” on their record, another might be a charge of market value rent deducted from any inheritance. Explaining those consequences to a reluctant “tenancy at will” tenant may be helpful.
A final resort, that should be avoided, if possible, by all sides, is an eviction process. The attorneys reported that pre COVID-19, the eviction process took 2 ½ to 3 ½ months. Now the process has been taking 4 to 7 months but is improving as courts get back to work.
Currently, only 1 courtroom in San Diego County is handing all eviction cases. In March of this year, there were 16 evictions pending. The next month, in April, there were 90 evictions as COVID-19 eviction moratoriums expired.
The best course of action pre death is a well spelled out will, trust and agreement between the family caregiver and the homeowner that avoids hard feelings among siblings. Written agreements are always better than oral ones, just to avoid any misunderstandings or legal complications later.
Hiring a caregiver from a licensed, bonded, and professional agency may also reduce headaches and avoid family strife that may result when one person appears to be “favored” or taking advantage of a housing situation.
At Home Nursing Care, Inc. provides caregivers hourly, daily or around the clock in San Diego County and the West Side, South Bay areas of Los Angeles.
We also provide a care management team that can assist families with aging in place needs, in terms of coordinating a written plan and mediating the tough topics that siblings often confront.