"In-Trust" Claims - Compensation for Family Caregivers

Following a serious accident, it is often necessary for people suffering from an injury or a disability to rely on those close to them to lend a helping hand in the form of nursing services and household duties like cooking and cleaning, and driving.  If you are lucky, you will have an army of close friends and family members reaching out to lend a helping hand.  As a society, we rely on the unpaid labour of these unsung heroes to lend a helping hand and into pick up the slack where our public health system lets off.    For those that are injured as a result of somebody else's negligence, it is possible to claim compensation in a personal injury lawsuit to compensate close family members for their efforts.  Often a personal injury can be devastating and disruptive to entire families, and it is important that this form of compensation is not overlooked.

This type of compensation is known as an "in-trust" claim, meaning that the injured party, in their personal injury law suit, makes a claim for compensation that is meant to be for the benefit of the contributing family members.

In order to make an in-trust claim, the injured party must be able to prove to the court that the family member's efforts were necessary, and would have otherwise been incurred by hiring a housekeeper, or a driver, etc.  Alternatively, the injured party can claim for the economic loss suffered by the family member who performed the services - for example, if they had to work reduced hours in order to provide care to the injured party.

However, a plaintiff cannot claim compensation for services that would have been provided whether or not the accident happened, and the services must be more than the usual "give and take" amongst family members.  Further, a court will award only the lesser of the cost to hire outside help, and the actual cost incurred by a family member in terms of their own lost income as a result of providing the services.

Image courtesy of Marin / FreeDigitalPhotos.net

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Written by W. Eric Pedersen

W. Eric Pedersen is a Managing Partner at Velletta Pedersen Christie. Mr. Pedersen regularly advises individuals and businesses on employment, human rights, labour, and debtor creditor law. Eric studied law at the University of Victoria, where he was awarded the Gowlings Prize in Intellectual Property and Technology Law. Mr. Pedersen has appeared in Supreme Court, Provincial Court, and the BC Court of Appeal, and has established himself as an effective advocate for individuals and businesses seeking to resolve disputes and achieve justice.