In Harger v. Structural Services, Inc., 916 P. 2d 1324 (NM 4/17/1996), the New Mexico Supreme Court writes:
- In defining the term "independent contractor," we adopt the approach taken in Restatement (Second) of Agency Section 220, "Definition of Servant" (distinguishing servants from independent contractors for purposes of tort liability). Further, Section 2 defines an independent contractor as "a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.
As can be seen from the above definition, the right-to control the worker's physical conduct is the dividing line between an employment or independent contractor relationship. If you are prepared to to enter into a contract with the caregiver under which it is agreed that the caregiver can undertake his/her duties with regard to the care of your mother in any manner that the caregiver sees fit, and that your only interest in such care is that your mother is maintained in a reasonably comfortable manner, then you could have an independent contractor relationship with the caregiver.
However, you could also be found to have engaged in elder abuse, if the caregiver fails to provide reasonable care -- because you would be effectively setting up conditions under which you would be ceeding your authority and responsibility for your mother's care to an unlicensed third party.
If your caregiver is a Certified Nurse Aid, and has successfully passed the Caregiver Screening Program, then maybe that would help demonstrate the sort of necessary independence to confirm an independent contractor relationship. However, again, in my experience, none of these things are particularly impressive to the Internal Reveune Service -- because the government has a very strong incentive in trying to transform everyone into an employee. All I can say is that it's always a dicey issue, many people ignore it entirely, and simply take their chances that the caregiver won't create a problem, freqeuently caregivers are not only unlicensed, have no criminal background check, but also are undocumented aliens who operate "under the radar," and while they may be very good at what they do, they may also be a ticking time bomb, waiting to explode in the face of the "employer."
I'd really like to give you a perfect workaround, but there isn't any. The old saying, "Ya pays yer money and ya takes yer chances," is fully applicable here.
Hope this helps.