What You Need to Know About Caretaker Laws in California
As a general rule, caretaker laws set out the general parameters for care of a person who is incapable of caring for themselves. It has one primary purpose: to create a legal framework for individuals unable to care for themselves and the people or organizations charged with caring for them. In short, it’s designed to cover caretakers against abuse allegations from the individual they help.
The trouble with these laws, however, is that the general definition of caretaker is quite broad and inclusive. There are two main criteria involved. The first is compensation. It is not necessary for caretakers to be paid. In fact, they may be family members or close friends who are not paid for their services . Under California law, being a caretaker does not have to be job related, so people doing it as a family member or a favor can fall under these laws just as easily as paid workers. In fact, simply residing with the afflicted person can make them a caretaker under the law.
The second criteria is the possession of care and control. A caretaker enjoys dominion over a person under their care. They handle medical issues, financial issues and day-to-day decisions. In short, this covers a wide array of people, from parents with sick children to paid nurses and family and friends who move into a home to help care for someone with an illness. With such a broad scope, it’s easy to see how people fall under this law. For employers and caretakers, this means taking extra steps to ensure the safety of the people under your care.
The Legal Responsibilities of Caretakers
In addition to the criminal background checks that most employers are required to run on caretakers, California law imposes other legal obligations that have to be followed. Put simply, there are standards of care and duties on caretakers. Caretakers also have to report alleged crimes to the police.
Business and Professions Code section 21350, et. seq. governs caretakers at various institutions. According to the statute, prior to performing caretaking duties, caretakers have to sign a written acknowledgment of their duties. This means that the caretaker must…state that they understand that abuse or neglect of a patient is a crime, and that they have to report alleged crimes to the police.
Employees, volunteers and contractors of the institution or facility must be fingerprinted and submit to a criminal background check with the department. The licenses of persons who have been convicted of misconduct may be suspended or revoked.
Labor Code section 2923 prohibits employers from retaliating against employees who report violations to any government agency. A fear of losing one’s job can inhibit an employee from reporting any violations and in a worst case scenario lead to a crime going unreported.
Caregiver Rights in California
California’s laws include numerous protections for professional and residential caretakers. Employees in the latter category are often subject to various labor regulations, including those involving overtime, meal breaks, and timekeeping. Employment for these individuals is also typically "at will," meaning that their employers can easily terminate the relationship for any reason that is not legally protected. While at will employment provides flexibility to the caretakers’ employers, it also allows employees to walk away at any time. These employees want to make sure that they go out on good terms or with a fair severance package. But if there is a dispute about the relationship, they may have a right to sue the employer for damages related to unpaid wages or incorrect termination.
Residential caretakers are typically provided with free room and board as part of their compensation plan. When this occurs, the employer is required to deduct the value of the employer-provided room and food from the wage calculation. While caretakers’ salaries (after deductions) are generally less than for non-residential caretakers, their hourly rate for compensation purposes is actually much higher than average minimum wage when considered without the deduction. These employees have a right to ask their employers for written verification of such provisions on an annual basis, so employers must be mindful of what they write in the written agreements, and should keep careful records of their employees’ activities.
Caretaker Or Guardian: What’s The Difference?
Under California law, a caretaker does not have nearly the same amount of legal responsibility or the level of legal protections that a guardian does. As previously discussed, a caretaker is a third party who provides assistance to an independent adult or a minor. A caretaker may reside in the residence with the individual or be temporary.
California law also defines the term "guardian" through the probate code, making specific distinction between a guardianship over the person, or a guardianship over the estate. A guardianship of the person involves the estate’s personal decisions, medical decisions and housing decisions. A guardianship of the estate involves the estate’s finances, including control over assets and property.
A guardianship terminates when the protected person reaches the age of 18, or when a new guardianship is in effect in another state, or the court determines that it should be terminated.
Caretakers can seek payments to support the individual in care, but they do not have to contribute to the costs as outlined in the EDD In-Home Supportive Services Guide:
"Caretakers may report their income instead of or in addition to the income of the person needing services in determining the category of service needed. The parameters of the hour or day limit of their work does not change."
Alternatively, guardians must execute a bond, whereby the bond functions as a form of insurance for the ward and the estate. A separate bond is required for guardian of the estate and for guardian of the person. The bond amount will vary based on the value of the estate. However, a single bond amount covers both roles for a given person or estate (with the exception of the bond for a guardian of the estate who handles more than $20,000 a year).
While a caretaker may have fewer responsibilities and more flexibility, a guardian has authority over fundamental decisions that impact the individual’s health and welfare. For this reason, caregivers are generally not deemed legal guardians until a guardianship petition has been filed with the appropriate court, approved, and appointed.
Previous Caretaker Legal Issues
Caretakers in California can encounter a variety of legal issues in the course of their care duties. For example, allegations of elder abuse or neglect are common among caregivers (whether as the party accused or the one reporting), as are the civil liability concerns that arise when an accident causes injury to a loved one or even the caretaker herself.
These are just some of the legal issues that California caretakers should be aware of, as well as what steps they can take to ensure they are living up to the letter of the law.
Alleged elderly abuse
It is a sad fact that elderly abuse is a problem throughout the United States, and almost all caretakers have witnessed or at least heard of someone abusing a measure of restraint when it comes to treating their elder family members. However, if an allegation of elderly abuse is brought down upon a caretaker who is innocent of the charge, their entire lives can be turned upside down.
California is no stranger to these kinds of lawsuits, and caretakers should be aware of the legal precedent in these situations. For example, one case from 1996 held that the "tension between section 667.5(c) and the reporting law has now been eased by section 15610.57, which provides criminal immunity for good faith reporting to the appropriate authorities of known or suspected abuse." In other words, truthfully reporting abuse to the appropriate agency can protect good faith actors against liability.
Evidence of abuse
The Elder Abuse and Dependent Adult Civil Protection Act defines elder abuse and neglect . However, not all elderly abuse is defined as such, as there are exceptions. This is also true when it comes to the standard of evidence—there must be "clear and convincing evidence" of the abuse or neglect, not just a preponderance of the evidence.
Negligence issues
Personal injury allegations do not always stem from abuse or medical negligence. Sometimes, their source is simply the personal sense of blame that children of elder adults may have upon seeing their loved one suffer a serious injury while in the care of a caretaker. If they believe the injury was the fault of the caretaker, they may try to lash out with a lawsuit.
Again, however, there must be evidence that the person responsible for the care was negligent, either in providing immediate assistance or in properly securing the home environment to reduce the risk of a slip and fall or other common elder injury.
For example, take the case of McIntyre v. Mast, which involved a 16-month-old child who knowingly went to bed with scissors, fell out of bed onto them and suffered lacerations. The family sued the daycare center for breach of contract, but because it was clear the child would have been allowed to cut her hair regardless of whether the scissors were taken away or not, the court found that, even though the breach occurred, it did not create the injury.
In other words, for a lawsuit to be successful, the party bringing the case must demonstrate that this person was, in fact, negligent, rather than relying on the emotional reaction to what was clearly a sad accident.
Addressing Conflicts and Caretaker Legal Matters
Even with the best intentions, caretakers and those who hire caretakers can find themselves dealing with disputes. To protect both the client and the caretaker, it’s important to know how the law in California can help resolve those conflicts. The most important thing for a caretaker to remember is that they should stay professional at all times. It can be tempting to argue with a client or to lash out over money or boundaries, but that can just lead to further complications. For example, if you believe you should be getting paid for travel time or the client won’t allow you to take sick days, these are issues you can address professionally without losing your temper or compromising your own integrity. The best place to start with any dispute is mediation. This is a neutral process in which a mediator will try to help both sides of the issue create a peaceful resolution. A mediator is an individual who is experienced at helping people work through problems such as these, and they act as a non-partisan third party. This means that they can deal with the emotional components that are often present in these disputes without taking sides. Mediators can be found through state organizations, and they are a low-cost way of resolving problems. Sometimes, a mediator cannot solve the problem, or both parties may be unwilling to even attempt mediation. If a solution cannot be reached, you might end up needing to go before a judge. This is usually the last resort though—it’s expensive, stressful, and time-consuming for everyone involved. If you must go to court, or you’re afraid it may come to that, then you certainly want to hire a lawyer to represent you. Without the help of a lawyer, you may have just wasted time and money on other options that could have been avoided with the expertise of an attorney. Court is difficult, but sometimes necessary. If it can’t be avoided, the best thing to do is be as prepared as possible. If you’re looking to hire an attorney, ask questions about their background to determine if they have experience or contacts to deal with elder issues, and how many such cases they’ve taken on in the past. If you yourself plan to represent yourself, then you’ll want to take some time to learn how the court works for the sake of your own preparation. The good news is that independent caretakers are protected under California law. Both parties have the right to seek assistance or legal counsel so that everyone is heard. Just remember to keep your cool, and work towards a resolution without losing your professionalism.
Help and Resources for California Caretakers
Several resources are available to help California caregivers navigate their responsibilities. Legal aid organizations often provide informational pamphlets and events that offer legal resources and information specific to California. Oftentimes law schools also provide free clinics for individuals to use when dealing with issues concerning the estate of the person for whom you are a caretaker. These may also provide forms that can be used during the process of transferring property from the decedent to heirs or beneficiaries. Some hospitals, churches , and organizations provide support groups for caregivers that allow you to meet with and discuss your issues with others in a similar situation. Websites may also be available for people living in California specifically focusing on the issues related to caretaking and the legalities surrounding deceased estates.
The website for the Superior Court of California has a "Be Prepared" page that provides information on legal resources and processes in order to prepare yourself for becoming an executor or administrator of a decedent’s estate in California.