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.