Follow Six Dos & Don'ts to Avoid Problems with Live-In Aides

Residents or applicants may inform you that they need to have an aide live with them to help them with daily tasks. If a resident who is elderly or who has a disability asks you to allow her to have a live-in aide to accommodate her disability and to provide supportive services essential to her care and well-being, the Fair Housing Act (FHA) requires you to grant the request as a reasonable accommodation.

But if you’re not careful, letting live-in aides reside in units at your site can lead to big problems.

A live-in aide could try to claim the right to stay in a unit after the resident moves out or dies. Getting aides out once they try to shift their status from aide to resident can be difficult, particularly when the aide is a relative of the resident. Especially at tax credit sites, some residents may try to play occupancy games. They know that they can have a relative live with them as an aide and not count the relative’s income at certification time. But this relative might refuse to leave a unit after the resident moves out or dies, claiming the right to live there as a remaining family member. The live-in aide may try to pay rent to help justify a legal residency claim. In these situations, you would probably succeed in getting a live-in aide who was a relative to move out—but not without a lot of wasted time and money spent in the process.

For tax credit purposes, if this relative had made the switch from live-in aide to resident at a tax credit site, the unit would’ve been out of compliance because she wasn’t certified as a household member. And in many cases, a live-in aide’s income exceeds tax credit income limits, and she or he may not be eligible to live in a tax credit unit. If your state housing agency discovers that this person has been living in a tax credit unit after the resident has died or moved out, it will report the site to the IRS for noncompliance. If you can’t get the live-in aide to move out, the IRS will at minimum take back the tax credits on that unit for the entire time the person lives in the unit after the certified resident died or moved out.

We’ll give you five Dos and Don’ts to avoid the common problems that arise when residents or applicants state they need live-in aides. Keep these Dos and Don’ts in mind as you handle requests to have a live-in aide at your site.

DON'T Count Income of Live-In Aide

You mustn’t count a live-in aide’s income when certifying or recertifying a household’s income [HUD Handbook 4350.3, Exhibit 5-1]. That’s because a live-in aide isn’t a household member. Instead, a live-in aide is just “a person who resides with one or more elderly persons, near-elderly persons, or disabled persons, and who is determined to be essential to the care and well-being of the person(s), is not obligated for the support of the person(s), and would not be living in the unit except to provide the necessary supportive services” [Handbook 4350.3, par. 3-6(E)(3)(a)].

DO Verify Member’s Need for Live-In Aide

Before you agree to a household member’s request to have a live-in aide, you need to verify that the household member making the request is considered disabled under the FHA and that the household member needs the live-in aide to accommodate her disability. Verification that the live-in aide is needed to provide the necessary supportive services essential to the care and well-being of the household member must be obtained from the member’s physician, psychiatrist, or other medical practitioner or health care provider [Handbook 4350.3, par. 3-6 (E)(3)(a)(2)(a)].

The FHA protects anyone who has a “physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.” The FHA defines “physical impairment” as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting any of the major body systems.” If you’re not sure how to determine whether a household member qualifies as disabled, consult your attorney or fair housing consultant.

The owner may verify whether the live-in aide is necessary only to the extent necessary to document that applicants or residents who have requested a live-in aide have a disability-related need for the requested accommodation. This may include verification from the person’s physician, psychiatrist, or other medical practitioner or health care provider. The owner may not require applicants or residents to provide access to confidential medical records or to submit to a physical examination [Handbook 4350.3, par. 3-6(E)(3)(a)(2)(a)].

We’ve provided Model Agreement: Have Resident and Live-In Aide Sign Agreement Restricting Rights of Aide. This agreement asks the resident for the following information so you can verify that the household member requires a live-in aide’s assistance:

• Name of the member of the resident’s household requiring the live-in aide;
• Name of the proposed live-in aide;
• Name, address, and telephone number of a health care provider who can verify the household member’s need for the aide.

DON'T Restrict Live-In Aides to Nonrelatives

Don’t refuse a live-in aide request just because the aide is related to the household member making the request. Relatives of disabled household members can be live-in aides if they fit the Handbook’s definition and aren’t married to the person in need of the aide’s supportive services [Handbook 4350.3, par. 3-6(E)(3)(a)(3)].

It’s true that when the live-in aide a household wants to add is a relative, the household is more likely to be trying to use the request to skirt the official requirements for adding a household member. An unscrupulous resident might realize the aide’s income isn’t included in the rent calculation. But relatives can be—and often are—legitimate and effective live-in aides. Be sure to verify the household member's need for a live-in aide.

DO Have Households Sign Live-In Aide Agreement

You should get a signed agreement whenever a resident asks you to approve a live-in aide. It’s important to treat all residents and aides the same. It’s also important to prevent any confusion about an aide’s right to stay in a unit. And our Model Agreement requires the signature of both the resident and the live-in aide so that all parties are aware of the particulars of the agreement. Here’s how our Model Agreement handles the situation:

Approval request. The resident asks you for approval of a live-in aide.

Statement that live-in aide isn’t a resident. The live-in aide and the resident agree that the live-in aide isn’t a resident under the lease. The agreement also states that the live-in aide won’t become a resident under the lease regardless of how long he or she is related to the unit’s legal residents.

Statement that aide lives in unit solely to assist household member. The live-in aide and the resident acknowledge that the aide may live in the unit solely to care for a household member and may not contribute income to support the household member. The aide and resident also agree that the aide will have no right to stay on in the unit if the household member who required assistance no longer lives there.

Departure timetable. The live-in aide agrees not to stay in the unit if he or she is dismissed or if the household member requiring care moves out or dies. The agreement also sets requirements for the timing of live-in aide’s move-out date:

• If the household member requiring assistance moves out, the live-in aide can’t stay past the household member’s move-out date;
• If the household member fires the live-in aide or no longer requires his or her services, the live-in aide has 24 hours to move out; and
• If the household member dies, the live-in aide must move out of the unit within 30 days.

Require aide to comply with house rules. The live-in aide agrees to follow your site’s rules and regulations while living there. And you get the right to evict the aide for violating those rules and regulations.

Management approval. If you approve the live-in aide, sign the agreement and return a copy to the household head and live-in aide.

DO Include Live-In Aide Clause in Your Leases

In conjunction with a live-in aide agreement, a lease clause will bolster your case to a housing court that a live-in aide doesn’t have the right to stay in a unit even after the resident requiring assistance dies or moves out. We’ve prepared a Model Lease Clause: Spell Out Requirements for Live-in Aide that you can use to inform the resident that you’ll verify the need for a live-in aide and require a signed agreement between the resident and the aide. Your live-in aide lease clause should:

• Say that the resident agrees not to permit an aide to live in the unit without your prior written approval; and
• Require residents to submit a live-in aide agreement signed by both the resident and the proposed aide as a condition for getting that approval. You should attach an agreement form to the resident’s copy of the lease so that, if need be, the resident can fill in the form and submit it to you.

To cut down on potential fraud, have your lease say that you won’t approve a live-in aide for a unit unless you’ve verified that a household member requires his or her services. Also have the lease say that the proposed live-in aide must be essential to the case and well-being of the household member and wouldn’t be living in the unit except to provide the support services.

DON'T Treat Households Inconsistently When Considering Live-In Aide Requests

You can get into fair housing trouble if you treat households inconsistently when they tell you they need a live-in aide. The FHA protects household members against housing discrimination based on their race, color, religion, national origin, sex, disability, and familial status. And your state and municipality may protect household members based on additional characteristics, such as sexual orientation, age, and source of income. If you apply your live-in aide policies and procedures more favorably to some households, other households may claim you illegally discriminated against them.

Therefore, it’s important to act consistently with household members who tell you they need a live-in aide. For instance, with the live-in aide agreement, require all households that ask for a live-in aide and their live-in aides to sign it. And be sure to verify every household’s need for a live-in aide.