I Care – therefore I am entitled aren’t I?

I Care – therefore I am entitled aren’t I?

What is the price for martyrdom in a family? This is becoming an increasingly common question being asked by the ‘martyr’ children in families.

As aged care becomes more expensive, families are internalising the caring arrangements for their ageing parents and keeping it ‘in house’ as opposed to ‘out house’. Caring for parents is becoming ‘the‘ family business of the 21st Century.

It can take many forms – from full blown care, such as an adult child moving in with a parent to care for them, to simply taking mum or dad to medical appointments. Some children’s contributions can border on the heroic. Other children can be more bystanders. Still others, living in Dubai, just can’t help.

Even though many caring children may be eligible for a carer’s allowance or pension, parents are often moved to compensate their ‘martyr’ child for all they have done for them in their later lives. They are known to do such things as:

  • Transfer assets to the child when the parent is still alive (eg in a granny flat arrangement)
  • Promise to change their Will to give more to the caring child
  • Pay a child to look after them.

But, what if the parent doesn’t do any of these things (or even if they do) – does the caring child have any recourse to some compensation or better compensation after their parent has died? After all, some of these children may have to give up their job to provide the care, or worse, their marriage.

As the law currently stands, a caring child might consider, for example:

  1. If the parent’s Will did not compensate them but the parent had previously promised to do so, trying to enforce that promise in a Court after the parent has died; or
  2. Bringing a challenge to the parent’s Will seeking better provision from the estate (over and above the entitlements of the other children); or
  3. Challenging a superannuation death benefit payout or a greater share of it.

Except for lawyers, none of these options are attractive involving, as they do, potentially acrimonious legal proceedings and the implosion of the broader family unit. Not the sort of legacy a parent wants to leave.

We think that the law is starting to recognise the contributions of the caring child more and more especially where a parent has failed to do so. We may well be moving to a situation where the law will acknowledge the caring child in some form of compensation for their care.

If your family is at the caring crossroads, it can really help to be forearmed with the options available and how a parent might want to acknowledge a child’s contribution (if they do). Having a meeting with us may just clear the air and avoid a future family fiasco.

To contact  CRH Law  for more information or to access their services go to http://www.crhlaw.com.au/  or click here>>

The thoughts of this blog are of the individual writer and not necessarily those of the Nurses for Nurses Network. To read our full disclaimer click here >>

Authored by: Brian Herd

Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. Brian has extensive experience in life planning for older people and the legal issues impacting on them including making Wills, administering estates, disputes over Wills, superannuation, social security, retirement villages and aged care, incapacity, the Guardianship Regime, the loss of a spouse or the ‘suddenly single syndrome’, planning for disabled children, elder abuse, enduring powers of attorney, advance health directives, family agreements and disputes and mediation. His expertise also extends to the structuring of business affairs and advising on the impact of the transfer of interests in family businesses including trusts and family companies. As a passionate believer in the crucial role of charitable and community organisations, he also spends a significant amount of his time advising the not for profit and community sectors on Board governance, restructuring and constitutional review, mergers and acquisitions, legal compliance and risk management especially in the aged care, retirement and disability sectors. Brian is a popular presenter in public forums on elder law issues and is also regularly invited to address the changing legal dynamics and needs of the aged care and disability sectors at industry conferences. In 2014, for the second year in a row, Brian was named one of Australia’s best lawyers in Retirement Villages and Senior Living Law. Qualifications, Memberships and Other Contributions: •Bachelor of Arts – University of Queensland •Bachelor of Laws (Hons) – University of Queensland •Deputy Chair – Queensland Law Society’s Elder Law Committee •Former part time member – Queensland Law Reform Commission •International member – National Academy of Elder Law Attorneys of America •Member – Queensland Law Society •Approved Facilitator for Corporate Governance – Aged Care Standards and Accreditation Agency •Member – QPAC Choir •Adjunct Lecturer – Griffith University

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