What are In Trust Claims?
An in-trust award compensates family members for additional work done by them when caring for the plaintiff or performing chores that the plaintiff would have otherwise done. It is called “in trust” because the plaintiff claims it in trust for the family member who actually did the work. However, there is no legal requirement to pay that family member.
To establish an in-trust claim, the plaintiff must show that:
- The services provided replaced services necessary for the care of the plaintiff as a result of the injuries.
- If the claimant is a family member, the services are over and above what would be expected from the family relationship.
Factors to be considered in assessing in trust claims:
- the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
- if the services are rendered by a family member, they must be over and above what would be expected from the family relationship;
- the maximum value of such services is the cost of obtaining the services outside the family;
- where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
- quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship; and,
- the family members providing the services need not forego other income and there need not be payment for the services rendered.
This award of damages is distinct from an award of loss of housekeeping capacity, which is money directed toward compensating the plaintiff for their loss of or diminished capacity to do regular housekeeping tasks.
In trust awards will not be made for services that the plaintiff received that would reasonably have been provided out of natural love and affection of family members. Compensation should only be provided when the services provided extend above and beyond what would reasonably be expected, though again this is not much of a barrier to the plaintiff where a spouse or family member has been devotedly attentive in assisting with his or her care.
Recovery for assistance provided by family members to a family enterprise has been approved by this court in previous cases.