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When A Family Member Takes Care of the Injured Plaintiff: In Trust Claims for Past Cost of Care

When a person is catastrophically injured and requires care, their family members often step in to provide that care, even to the point of needing to quit their jobs to do so. One of the most common questions we are asked by family members in that circumstance is “do I have a claim too?”

The short answer is yes, and the family member doesn’t need to be a named plaintiff in the lawsuit in order to recover for the care they provided to their injured loved one. The Courts in Alberta have recognized something called an “in trust” claim for past cost of care in a number of cases, including Forsberg v Naidoo, 2011 ABQB 252. The claim is made under the heading of past cost of care and is claimable as part of the injured person’s claim, but the claim is made on behalf of the people who provided care to the injured person for free.

This claim is usually calculated by taking the amount of time the family member spent caring for their injured love one and multiplying it by the hourly rate of a community service worker – in other words, the value of the care provided.

Often our clients will want their family members to be plaintiffs too, because they have also lost something. However, we usually recommend that those who provided gratuitous care to our clients not be named as plaintiffs and that we claim for the value of their care in an in trust claim. This is because there usually is not much to be gained by the loved one becoming an actual plaintiff, and becoming a plaintiff exposes the caregiver to document discovery and questioning, as well as potential costs consequences if the lawsuit is unsuccessful. An in trust claim provides the full benefit of the loved one’s care in the majority of cases, while insulating him or her from the risks of litigation.

If you have any questions about the care your family members have provided you due to an injury or accident, a Weir Bowen lawyer would be happy to speak with you.

By Shelagh McGregor

INDIGENOUS LAND ACKNOWLEDGEMENT

The lands on which Edmonton sits and the North Saskatchewan River that runs through it have been the sites of natural abundance, ceremony and culture, travel and rest, relationship building, making, and trading for Indigenous peoples since time immemorial. Edmonton is located within Treaty 6 Territory and within the Metis homelands and Metis Nation of Alberta Region 4. We acknowledge this land as the traditional territories of many First Nations such as the Nehiyaw (Cree), Denesuline (Dene), Nakota Sioux (Stoney), Anishinaabe (Saulteaux) and Niitsitapi (Blackfoot).

Weir Bowen acknowledges the many First Nations, Métis and Inuit who have lived in and cared for these lands for generations. We are grateful for the traditional Knowledge Keepers and Elders who are still with us today and those who have gone before us. We make this acknowledgement as an act of reconciliation and gratitude to those whose territory we reside on or are visiting.