How can I get my brother to compensate me for being his caregiver?

1 answer | Last updated: Sep 14, 2017
Traurig asked...

My 61 year old brother never recovered from neurosurgery 11 years ago. He is still brilliant, but lacks initiative to start things. He can read only one or two sentences at a time. He can bathe himself and enjoys doing laundry in an idiosyncratic and obsessive way. For 8 years he lived with our elderly mother. My younger healthy brother helped our mother with financial details and some doctor's visits. This delayed my younger brother's progress to his master's and phd degrees. During this time, I had surgery, and was becoming accustomed to a painful and fatiguing disease. Prior to this time, I raised a wonderful child with hard to control diabetes. For almost 4 years our sick brother has been living with me full time. I take him to one or two physicians's appointments a week and physical therapy. I am in the kitchen all the time. I try my best to be a good sister. There is no compensation agreement. I am now 54 and still have this serious health ailment, aggravated by the demands of caregiving. Caregiving delayed my BA in history by one year. I dropped out of a master's program in teaching due to caregiving. My husband refuses to have health aides in the house. Our sick brother is well-to-do financially. How can I be compensated for past care and the financial opportunities I have lost by not going to graduate school? I have lost years of Social Security credit. I do not believe that I can work anymore. I grieve for my lost life, as my healthy brother celebrates his phd and his patents. All 3 healthy siblings have POA. My sick brother is incapable of a financial agreement. When my brother came to me, it was supposed to be for only a few weeks. I thought that my siblings would help. They have not. There is a healthy early retired sister who travels the world. Neither healthy sibling has sent birthday or Christmas greetings. It has been almost 4 years now. I have now woken up and realized that I have been taken advantage of. My remaining health has been stolen by caregiving. My younger brother of the phd believes that I should be compensated in an unspecified and miserly way. I have seen an elder care attorney for my own interests, but she is new to her profession, and has no recommendations about compensation. Is there another kind of lawyer that I should see? Should I get an annuity to make up for the lost social security? Please advise me.

Expert Answers

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

Yours is a painful story. You have made many sacrifices trying to be the best sister you could be. You have a partially disabled brother who lives with you without paying you for housing or services even though he has the financial capacity to do so. Your other brother is successful but doesn't contribute financially and your sister seems quite disengaged from the rest of you. Given these concerns, it's our sense that bringing the family together is essential to reach a lasting agreement regarding your compensation. Your question raises two distinct sets of concerns, one involving a claim for services rendered in the past and the other focused on the future, and you will need to design your strategy with an eye on that distinction. It will be difficult from a legal perspective for you to obtain compensation for the past care and lost financial opportunities, as generosity within a family context typically gives rise only to a moral duty of compensation but generally not a legal obligation. Hard as it may be, it is vital that you acknowledge (at least to yourself) that you didn't have a "contract" for compensation and since you weren't in a business setting where compensation is the norm, your siblings probably do not have any legal obligations.
The future is a different story: you have every right to insist on some kind of financial arrangement that reflects the value of what you are providing. Going forward it will be essential that you set firm limits about what you are willing to do and what you aren't willing to do.

In light of these complexities it would make most sense to take an approach that goes beyond a narrow "legal" claim, but rather, involves a search for mutual understanding. That typically calls for a mediated rather than a negotiated process, probably with the participation of a neutral facilitator, either a lawyer /mediator (who resolves differences and facilitates concrete decisions), a therapist (who may bring about a similar outcome by talking about how the family history has influenced the dilemma the family faces) or a religious counselor (who would emphasize the commonality of your beliefs as a way to resolve the compensation issues).

Before convening a meeting you would want to clarify in advance the financial consequences of your past sacrifices as well as the value of the your services and the loss of future opportunities. A lawyer is probably best equipped to serve as your coach, to help you prepare for the meeting and if an agreement is reached to document it in writing. It also makes sense for you to put something in writing in advance so your siblings have the chance to fully understand your point of view.

We suggest a one-day meeting with you and all your siblings. Begin the morning with two ground rules for all siblings honor: avoid inflammatory language and avoid blaming. You can start by sharing your experience of care giving over the last four years, explaining what made it impossible for you to continue your education, and then your siblings can respond to your ordeal by talking about what it has been like for them. It is our view that families need to understand each other's perspective in order to come to resolution, and although the decisions may primarily involve you and your brother, having all the siblings present may prevent future second-guessing. As part of the process you will need to consider the extent to which your disabled brother may not have the capacity (intellectually or emotionally) to handle this sort of discussion. Then, later in the morning or in the afternoon you can begin to discuss ways to compensate you going forward, considering a realistic goal in the first stage of this process. In some instances it is best to begin with a limited set of goals, such as asking your brother to pay a monthly fee for the "rent" and his care. That would help everyone overcome the taboos about discussing your needs and would set a precedent for some degree of compensation for your services, making it easier to expand the discussion to deal with long-term compensation for future care of your brother and opening up the discussion of compensation for your past efforts.