Can a Family Member Be a Live-In Aide?

A family member can seek to qualify as a live-in aide as long as HUD requirements are met. HUD defines a live-in aide as “a person who resides with one or more elderly persons, near-elderly or persons with disabilities” and is necessary to offer care and well-being services. HUD adds that a live-in aide is:

• Determined to be essential to the care and well-being of the persons;
• Is not obligated for the support of the persons; and
• Would not be living in the unit except to provide the necessary supportive services [HUD Handbook 4350.3, par. 3-6(E)(3)(a)].

Family members, like other live-in aides, are allowed to remain in the housing unit only as long as a disabled resident requires the aide’s services and remains a tenant. In HUD Section 202 and Section 811 housing communities, adult children of disabled and elderly tenants are not eligible to move into a housing unit unless they will fulfill the services of a live-in aide and meet the necessary criteria. Put simply, a relative can be a live-in aide if that is the only reason he or she is living in the unit.

The Case of the Separated Spouse

A tricky situation can occur when some tenants want their separated spouse to be their live-in aide. It may be the case that a disabled resident prefers his wife to be his live-in aide despite their separated status, rather than hiring a stranger to be a live-in aide.

In one recent case, an elderly disabled Section 8 resident filed a claim under the Fair Housing Act (FHA) for discrimination after an owner denied his request for a reasonable accommodation. The resident requested an accommodation for a live-in aide because of increased health problems associated with falls, memory issues, seizures, and other concerns resulting from his disabilities.

The resident submitted the appropriate verification form with a healthcare provider verifying that he was disabled and his need for a live-in aid was related to his disability and necessary for him to have equal enjoyment of his rental unit. But management denied his request because he requested that his wife be considered as the live-in aide.

In addition to filing a lawsuit, the resident filed a complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO). The FHEO determined that the spouse didn’t qualify as a live-in aide. Therefore, the owner didn’t unlawfully deny a reasonable accommodation request on this issue. The FHEO explained that “while a relative may be considered a live-in caregiver,” HUD’s “applicable rules and regulations” don’t allow a spouse to be a live-in aide. The FHEO’s Letter of Findings quoted HUD Handbook’s three requirements listed above for a live-in aide.

How the Court Ruled

The judge ruled that spouses aren’t automatically excluded from serving as live-in aides and that the FHEO’s interpretation of HUD’s regulations was wrong. The judge pointed out that the HUD Handbook specifically states that a relative may be a live-in aide if they meet the requirements. In fact, the judge noted when the HUD regulation defining live-in aides was established, the agency intentionally deleted proposed text that would’ve prevented spouses and family members from serving as live-in aides specifically to encourage such persons to serve as live-in aides.

In this case, the judge denied the owner’s request for a judgment without a trial. According to the judge, the circumstances showed there’s sufficient evidence to support the resident’s claim that the spouse wouldn’t be living with the resident except to provide the necessary supportive services.

At the time of their marriage, the resident lived in Oregon and his wife lived in the Philippines. The resident and his wife continued to live apart for the next two years. During those two years, the spouse continued to live and maintain her own home in the Philippines, where she worked as a teacher, with no intention of coming to live in the United States.

After two years of marriage, she offered to move to the United States to take care of the resident because of his declining health issues. The wife took a leave of absence from her job in the Philippines. And she was certified as the resident’s live-in aide under the Medicaid Independent Choice Program. The program pays her for the services she provides to the resident as his live-in aide. 

According to the judge, the fact that the spouse didn’t move to the United States for two years after marrying the resident, until his health deteriorated further, is further evidence supporting the resident’s claim that she resides with him solely for the purposes of providing the resident with caregiving [Johnson v. Guardian Management, April 2021].

Takeaway

Don’t automatically deny accommodation requests to have separated spouses as live-in aides. Get the whole picture and clearly document that the tenant and the live-in aide are separated. To qualify as a live-in aide, the separated spouse must be essential to the care and well-being of the tenant. Verify the need for a live-in aide from a physician, psychiatrist, or other licensed medical practitioner or health care provider who can state that a live-in aide is essential to the care and well-being of the tenant. It’s important to note that you can’t request confidential medical records.

In addition, the separated spouse shouldn’t be obligated for the support of the resident in order to qualify as a live-in aide. They could provide income verifications that show each of them as financially independent. And therefore, they would be able to show the separated spouse isn’t living with the resident for financial reasons, but rather because the resident needs the separated spouse for live-in aide services.

Finally, to qualify, they must be able to show the separated spouse wouldn’t be living in the unit except to provide the necessary supportive services to qualify as a live-in aide. Proving that a live-in aide wouldn’t be living in the unit except to act as a live-in aide can be difficult and may require showing that the separated spouse wasn’t a household member before becoming a live-in aide.