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Who’s Part of Your Client’s Family?

A recent ruling says that home health care aides may be included.

Can a home health care aide be considered part of a family? According to a recent ruling in New York, the answer is yes.

In 6914 Bridge Blvd. LLC v. Delao, L & T 86571/18, (NY Civ. Ct. Kings Co. Jan. 6, 2020), a landlord sued to evict a health care aide for an elderly tenant from a rent-controlled apartment after the tenant passed away in 2018 at age 93. The aide claimed that she had succession rights to the apartment as a “nontraditional family member” of the tenant.

In New York City, rent-controlled apartments, with their below-market rents, are highly coveted (in this case, the rent was an almost unheard of $283 per month). And, under New York law, a “nontraditional family member” of a named tenant can take over the apartment after the tenant dies if she’s lived in the apartment with the tenant for at least two years before the tenant’s death. The nontraditional family member must show an emotional and financial commitment and interdependence between herself and the tenant. The law states that evidence includes the longevity of the relationship, sharing of household and family expenses, intermingling of finances and engaging in family-type activities together.

Before this ruling, nontraditional family members under the law would “typically be same-sex partners or unmarried partners, distant relatives and even very close friends as long as they met the high bar set by the courts to meet the standard of ‘family,’” says Claunick Duronville of CAMBA Legal Services, who represented the aide.

Family Ties?

According to an article in the The New York Times about the court case, the tenant had never married and didn’t have children. In 2014, she broke her hip while walking into Lincoln Center to see an opera. She hired the health care aide. Both women were immigrants who worshiped at the same church. The tenant ran out of money to pay her, so the aide moved in, working for free but saving money on rent. 

The court ruled that the aide met the requirements for a nontraditional family member by showing proof of a joint bank account with the tenant, documents formalizing legal obligations, years of sharing family functions and that they held themselves out as a family to the community and members of the church.  

No Significant Assets

In the estate-planning world, we often see this issue come up after an elderly tenant changes her will to leave most, if not all, of her estate to her caregiver. The family may challenge the will claiming elder or financial abuse. The tenant in this case did have a will, and the aide was named as executor, according to Duronville. However, the estate consisted of no significant assets, and the aide wasn’t a beneficiary under the will, he notes. Also, rather than challenging the aide’s right to the apartment, the tenant’s family supported her claim. According to Duronville, the tenant’s nephew testified at trial that his aunt (who was also his godmother) loved the aide like the daughter she never had and that it would have been her intention to have the aide remain in the apartment after her passing because of the family-like relationship they shared.

Expanding Definitions

As Duronville points out, “this [case] is a great victory for tenants’ rights and for the unique kinds of families all over this city.” But it’s not only landlord-tenant attorneys who should be taking note.

It appears that, in this case, the tenant’s most significant asset was the ability to live in the rent-controlled apartment, which the aide inherited through operation of law. However, a lot more can be at stake if attorneys fail to consider “nontraditional” family members when advising clients on their estate plans.

As the modern definition of what constitutes a family has significantly evolved over the years, practitioners need to understand that it may not be clear whom the client considers family. The antiquated notion of what’s considered “family” has been expanded to include, for example, blended families, same-sex marriage and posthumously conceived children. The practitioner can no longer make assumptions on who should be considered as part of a client’s family, and it’s important to discuss with a client who she considers to be her family members.

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