An Economy of Regard

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An Economy of Regard

Marie-Therese Connolly

SOMEDAY ALL THIS WILL BE YOURS:
A History of Inheritance and Old Age.
By Hendrik Hartog.
Harvard Univ. Press. 353 pp. $29.95

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The story behind Hendrik Hartog’s important new book sounds almost like the setup to a joke: What does a Princeton legal historian do when he visits his 91-year-old mother for a month? Spend alternating days shuttling between Mom, who lives in a retirement community in San Mateo, California, and the New Jersey Miscellany, an “obscure and unofficial series of New Jersey case volumes” unearthed in the law library at the University of California, Berkeley.

Hartog discovered a cluster of New Jersey cases spanning the mid-19th to mid-20th centuries, chronicling disputes that arose when older people used promises of inheritance to cajole younger ones, usually their adult children, into caring for them. The resulting book, Someday All This Will Be Yours, explores arrangements that preceded the multibillion-dollar enterprise we now call family caregiving.

Family members have cared for one another in old age for millennia.But in the 19th century, families were becoming smaller, and with economic opportunities expanding, “no one had to stay home and provide care.” How, then, to assure it? With promises of inheritance, but without creating what Hartog calls the “King Lear problem”—“giving up control and power and property too early.” Once the inheritance changed hands, the parent lost leverage. In the words of Shakespeare’s aging king, “How sharper than a serpent’s tooth it is to have a thankless child.”
 
Promised inheritances thus became, in effect, collateral for homegrown long-term care insurance policies. Family members, adopted children, and others provided years and sometimes decades of hard labor, housekeeping, and nursing. Disputes arose when the deceased’s will didn’t provide the expected remuneration, siblings staked competing claims, or creditors objected. Litigants sued under various legal theories, including—in the archaic language of law—quantum meruit, or as much as one deserves. The resulting cases reflect the evolving roles and entitlements of women and men, parents and children, family and help.
 
Hartog’s book doesn’t yield neat lessons, but it does reveal trends. The earliest cases he found revolved around the question of whether adult children remained subject to the “empire of the father.” That debate gave way to judicial attempts to find clarity by focusing on definitions of “family.” In Disbrow v. Durand (1892), a New Jersey court analyzed the claim of Sarah Disbrow “not in terms of patriarchal authority but of the expectations of ‘members of a family, living as one household.’” Disbrow had provided live-in help to her unmarried brother, keeping house, cooking for him and his hired men, and nursing him in his last illness. The court denied her claim to compensation, finding her labor to have been borne of the types of “reciprocal acts of kindness and goodwill, which tend to mutual comfort and convenience”—in other words, familial labors rather than the fruit of a contractual agreement.
 
At the turn of the 20th century, courts tried to distinguish between “normal work” (cooking, cleaning, companionship) and “exceptional work.” In 1893, for example, after Asher Woolverton broke his hip, he relied on his stepson-in-law, David Lawshe, to frequently help him with various bowel problems. Litigants such as Lawshe enumerated in graphic detail the indignities that attend the mutinies of flesh and mind to persuade courts that the care provided was not of the normal sort, but was undertaken with an expectation of compensation.
 
Women were denied recompense more often than men, on the assumption that they had more of a duty and paid a smaller price than their male counterparts, a perspective that raised enduring questions about “women’s work”: Do we demean caregivers (chiefly women) by not paying them for the care they provide children and elders? Do we pervert the meaning of family by assigning a dollar value to care offered out of love?
 
By the mid-20th century, Hartog’s narrow swath of cases disappears (though the disputes likely morphed into other sorts of legal claims). But even as Social Security, Medicare, Medicaid, pensions, and private insurance ushered in a “commoditized universe of pay for services,” family caregiving continued to grow.
 
The issues underlying Hartog’s cases are hardly obsolete. According to the Family Caregiver Alliance, 43 million people (more than live in California) provide unpaid care, broadly defined, for someone 50 or older, often at substantial personal cost. The cumulative price tag for such care is estimated at $450 billion a year in supplies, lost wages, transportation expenses, and other costs. These numbers will grow as the nation’s 77 million baby boomers age.
 
It’s not clear who’s going to provide or pay for all the care that will be needed. Hartog’s subjects had assets to fight over. Those without means relied on family and the poorhouse, just as today they mostly rely on family and Medicaid. Medicare doesn’t reimburse most long-term care costs, and few people can afford long-term care insurance. The fact is that, as a matter of policy, economic necessity, and personal preference, millions will continue to rely on care provided at home by kin.
 
Though the focus of Hartog’s fascinating book is narrow, the questions it raises about conceptions of family, gender roles, work, aging, disability, duty, love, and the (fair) wages of caregiving are abundantly contemporary.
 
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About the Author

Marie-Therese Connolly is a senior scholar at the Woodrow Wilson Center, director of the nonprofit Life Long Justice initiative, and a 2011 MacArthur Foundation fellow.