Follow Six Dos & Don’ts to Avoid Problems with Live-In Aides
Very often, household members applying to or already living at a site say they need to have an aide live with them to help them with daily tasks. If a resident who is elderly (age 62 or older) or near elderly (age 50 or older) 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, HUD and the Fair Housing Act (FHA) require 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. For instance, households and live-in aides must understand that aides aren’t household members. Otherwise, an aide may claim the right to stay in a unit after the household moves out. You also need to know how to treat live-in aides when certifying household income.
We’ll give you six dos and don’ts to avoid the common problems that arise when household members claim they need live-in aides. Keep these dos and don’ts in mind as you deal with household members’ 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)].
Although you mustn’t count a live-in aide as a household member, you must consider aides when complying with occupancy requirements. In other words, owners must count live-in aides for purposes of determining the appropriate unit size [Handbook 4350.3, par. 3-23(E)(6)(d)].
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)].
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 household member might realize the aide’s income isn’t included in the rent calculation and the household can get a larger unit so that the aide can have his own room. 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.
Screen Live-In Aides for Illegal Drug Use, Criminal Activity
Before allowing an aide to move into a unit, screen the aide for illegal drug use and other criminal activity including a state lifetime sex offender registration check [Handbook par. 4-7(B)(5) and 7-11(C)(1)]. For a form you can use to get the aide's consent, see our Criminal Background Screening Questionnaire, at the end of the article.
You may also apply additional owner-established screening criteria used for applicants, except for the criteria to pay rent on time [Handbook 4350.3, par. 7-11(C)(2)].
Have Households Sign Live-In Aide Agreement
Before allowing an aide to move in, require households and their live-in aides to sign an agreement, like our Live-In Aide Agreement, making clear that the aides won’t become household members no matter how long they stay in the unit. This agreement can prevent problems if a household moves out or its members die after you grant the household’s request for a live-in aide. Too often, live-in aides claim the right to stay in a unit even though the household is no longer there. And evicting an aide in this situation can be tough, especially when the aide is a relative of a household member.
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, if you have a live-in aide agreement, require all households that ask for a live-in aide and their live-in aides to sign it. And verify every household’s need for a live-in aide.