The circle of custody and contact in later life

The circle of custody and contact in later life

Many of us are familiar with the term ‘Family Law’ either because we have been, regrettably, a party to a family law dispute ourselves or, at least, some of our children have.

Older people can become embroiled in family law disputes, not so much between themselves , but in the maelstrom that can arise from the breakdown of their children’s relationships. So, for example, we often see older parents applying to the Family Court for contact with, or access to, their grandchildren or even being a party to a financial agreement between a child and their spouse to protect that child’s inheritance.

In acting for older people, however, we have identified an analogous ‘family’ issue. It is the simmering and developing events surrounding disputes and disharmony between adult children about their ageing parents. It doesn’t fit within our traditional understanding of Family Law so we have devised a derivative – we call it the ‘Law of Family’.

While the seeds of family conflict in later life can germinate from anywhere at anytime, one that is particularly prevalent is the tendency of some older children to isolate their ageing parents from the other adult children (and their children). As a result, the usual dispute between estranged spouses about contact or custody of their children comes full circle and becomes a dispute between adult children about contact or custody of their parents.

The poignancy and pathos of this circle of family life is no better demonstrated than in this typical scenario we recently confronted:

  • Mavis is 85, having difficulty getting about and needing some daily assistance with life
  • One of her children, Murray has moved in to ‘look after her’ although this wasn’t discussed with the other 3 adult children.
  • Murray is a ‘systems man’ and knows the social security ropes – he’s on the skids, on a disability pension and keen to be on a carers allowance as well
  • He’s also anxious to preserve the family home owned by Mavis and not to have it ‘wasted’, as he calls it, on aged care fees
  • Melinda is Mavis’ dutiful daughter. She usually phones her mum every day and visits her at least once a week accompanied by her children who are always happy to see grandma.
  • When Murray moved in he convinced his mum to put a few ‘necessary things’ in place such as appointing him her Enduring Power of Attorney, having signing authority on her bank account, being her social security nominee and a secondary card holder on her Visa card – Murray took control.
  • He has a subliminal fear that Melinda’s regular presence will lead to a certain amount of unwanted scrutiny of his conduct
  • To limit that potential, he institutes a number of initiatives:
    • He changes the locks on the doors of the home so Melinda just can’t turn up unannounced with her key
    • He tells Melinda that she can’t take Mavis on outings anymore without his approval
    • She (and her children) can’t come to see Mavis unless it is pre-arranged and only if he is there
    • If she rings, she is only to talk to him and not Mavis

He is engaging in a familiar pattern of deprivation done for notionally protective reasons eg “Mum doesn’t need the stress” or “This is what mum wants”. Not only that, he can feel engorged by power, namely, having the Enduring Power of Attorney for mum bestows him with power and abilities far beyond those of other mortal siblings – doesn’t it?

Almost invariably this type of conduct hides a scheme of skulduggery designed to bolster their power and their pocket.

What is often forgotten is the impact it has on the mum’s life and her happiness. She becomes torn between being forever grateful for that son who so selflessly gave up his freedom to care for her and the natural love and affection of the other members of the family.

Allowing this situation to fester and ferment does nothing to improve mum’s precarious position, her vulnerability or the broader relationships in the family. Restorative action is required not acquiescing to his requests which will just feed the power hunger and encourage him to go even further.

Our advice is never let this linger on. Getting good legal advice about your options is crucial to limiting the damage and achieving some measure of relationship retrieval. You owe it to yourself and your mum.

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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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