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Professor Nina Kohn Publishes on Elder Care and Intra-Family Contracts

Posted on Tuesday 6/11/2019
Nina Kohn
Kohn, Nina. "For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts." Harvard Civil Rights-Civil Liberties Law Review, 54 (2019). 

As the US population ages, writes David M. Levy L'48 Professor of Law Nina Kohn in Harvard Civil Rights-Civil Liberties Law Review, demand for care providers for older adults is rapidly growing. 

Although the law’s treatment of care contracts between older adults and their family caregivers has substantial implications for the country’s ability to meet this demand, there has been no prior empirical examination of the law’s current treatment of such agreements. Kohn's article fills that gap by assessing how courts and other legal actors treat intra-family agreements to pay family members for elder care. 

A look into a long-ignored area of case law—Medicaid eligibility determinations—reveals that courts, administrative law judges, and state regulators typically attach little or no monetary value to elder care provided by family members. Rather, payments for caregiving are routinely treated as fraudulent transfers. The result is that, in the name of combatting Medicaid fraud, states penalize older adults who pay for their own care.

Treating family-provided elder care as lacking monetary value stands in sharp contrast to the high cost of elder care purchased on the open market and is at odds with states’ increased willingness to directly pay family care providers. Kohn shows that this incongruence can be partially explained by public distaste for Medicaid planning and distrust of agents acting on behalf of older adults. Entrenched stereotypes about care work and related expectations about familial care also contribute to the law’s refusal to recognize these agreements and the economic value of care provided under them.

In her article, Kohn offers lessons for social policy, legal theory, and legal practice. On a policy level, it shows that states are engaged in counterproductive behavior that will discourage the very type of family care they purport to encourage. On a theoretical level, it indicates that attitudes toward care work and courts’ willingness to enforce contracts between family members have not changed to the extent commonly described by family law scholars. 

Finally, at a practical level, Kohn suggests that attorneys should adapt the advice they give clients to better account for distrust of agents.