Intergenerational contracts
Many older people are dependent on care from third parties due to their age or health. Fortunately, one of the children often steps in and takes care of the father or mother in need of care, for example with the help of the neighborhood service or an outpatient care service. In this way, the otherwise unavoidable and often undesirable stay in a nursing or retirement home can at least be postponed, sometimes until death.
Depending on the degree of care required, caring for and looking after the elderly person takes up a considerable amount of time and even more energy. Over months and years, it can determine the entire daily routine of the child carer, starting with morning help with washing, dressing and preparing breakfast, through to preparing dinner and putting them to bed. In addition, there are domestic activities such as cleaning the apartment/house, making and undressing the bed, doing the laundry, shopping and the large complex of spending time together and caring for the child.
Based on the rates that apply, for example, to the use of a mobile social assistance service, the value of such care or the care costs saved as a result can add up to several tens or, in extreme cases, hundreds of thousands of euros over the period of care. Nevertheless, the time-intensive care and support of the father or mother is only very rarely provided on the basis of a written care agreement.
Such an agreement would be in the well-understood interests of both parties and, in the event of inheritance, would contribute in particular to the protection and remuneration of the child providing care, which is often desired and intended by the person providing care, but rarely expressed directly. However, there are usually moral reservations on the part of the carer: For understandable reasons, they do not want to be accused of having demanded something or being paid for a service that they would like to provide or believe they have to provide for their father or mother out of family ties.
However, the situation is often different in relation to non-caring siblings. It would be desirable for them if the care services were not provided free of charge or if they were remunerated. This applies in particular if the children inherit equal shares of the parent who has lived longer after the parent's death, e.g. on the basis of a so-called "Berlin will". In such a will, the spouses appoint each other as sole heirs upon the death of the first of them and their children as heirs upon the death of the longer-living spouse, e.g. in equal shares. If there is then no care contract to rely on if necessary, it is extremely difficult in practice to subsequently enforce a care allowance. The German Civil Code does contain a special provision. In practice, however, it is only in extreme and therefore very rare cases that it is actually possible to overcome the hurdles posed by the standard and obtain compensation for care services. Therefore, everything regularly depends on the goodwill of the siblings and whether they are prepared to reward the caregiver's work on their own initiative.
If, for example, the parents have drawn up a so-called "Berlin will", not even a new will drawn up by the parent providing care shortly before their death, for example, in order to put the child providing care in a better position, would help. This is because such a will would be ineffective, as it would contradict the provisions that the spouses made together in their will in the event of the second death, namely the children's entitlement to inherit in equal shares.
The only solution here is a care agreement that is tailored to the specific circumstances of the individual case. For example, it regulates the extent of the need for care, the amount of the care allowance and the question of what is to be done in the event of a possibly unavoidable institutionalization. Above all, however, such a contract can also take account of moral concerns by stipulating, for example, that a care allowance is deferred until the death of the parent and only then becomes due - in one lump sum - (insofar as the tax disadvantages involved are accepted). This avoids being paid by the father or mother at the expense of the respective pension. Instead, the compensation for the care is only paid at the level of the heirs. This is because the claim arising from the care contract constitutes a liability of the estate that takes precedence over the division of the estate between the siblings. In other words, a care contract can be considered in particular if the parent requiring care can no longer draw up a new will because they are bound by an earlier disposition of property upon death. In practice, however, it is not always easy to broach the subject of a care contract. A great deal of tact is required here to avoid giving the wrong impression. However, if a care contract is in place, you can save yourself a lot of trouble, costs and effort later on.
Status: 23.10.2016