When hiring a caregiver, you may be tempted to try to make the process as simple as possible by treating the caregiver as a “private contractor.” You tell the person “I will pay you so much an hour, and you deal with the IRS and the State when it comes time to pay taxes.” After all, taking on the responsibilities of withholding taxes (and then paying the taxing authorities), buying Workers’ Compensation insurance, paying Social Security and Medicare tax, and all the rest, can be a real pain. However, the IRS and the State will take the position that the caregiver is an “employee,” that you are an “employer,” and that all the legal obligations that attach to those labels are applicable to your situation.
IRS Publication 926 gives very helpful guidance to those hiring household employees, including caregivers. Go through that publication, which can be found at https://www.irs.gov/forms-pubs/about-publication-926, and consider all the questions it poses, several of which might surprise you. For example, can your prospective caregiver legally work in the U.S.? How do you verify that, and what records must you keep to prove that you satisfied your obligation to verify the caregiver’s status? You can find all the resources and forms you will need for that on the U.S. Citizenship and Immigration Services website www.uscis.gov/i-9-central or call 800-375-5283.
Depending on your budget, it may make sense to look into local employment or caregiver agencies. This simplifies your job, because you can contract with the agency, and the agency will be the caregiver’s employer and will deal with all of the details of being an employer. You will pay a premium for this kind of service, but the agency’s experience and employment expertise may make the extra cost seem like a bargain.
Another set of issues arises if you opt to be the employer of a caregiver, and then your employee is injured on the job. If you have made sure to carry the right kinds of insurance, you will be fine. However, the consequences of failing to do so can be financially disastrous. An agency will probably carry Workers’ Compensation insurance, but you should be sure to talk with your personal insurance professional to find out if there is anything else you should do to protect yourself through your homeowner’s and umbrella policies.
The bottom line is that you should never hire a caregiver without carefully considering your legal responsibilities and potential liabilities, and making sure they are addressed. Ask your trusted advisors — your CPA, your lawyer, and your insurance professional — for guidance, and check out the resources cited above. You will be glad you did.
SCOTT MAKUAKANE, Counselor at Law
Focusing exclusively on estate planning and trust law.
www.est8planning.com
808-587-8227 | maku@est8planning.com
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