Till dementia or death do us part!

Till dementia or death do us part!

“…till death do us part” may have been part of your wedding vow but these days it might more appropriately say, “…till dementia or death do us part”.

There are 2 prevailing themes emerging in ageing – separation by dementia and substitution by dementia.

I have written previously on the subject of the effect of dementia on a couple’s relationship particularly where one cannot look after the other and one has to enter aged care – it is a form of involuntary separation. It can not only impact on their relationship but on their finances as well. Suddenly, they have to support themselves in different places – the one who stays in the home and  the other one who has to enter a residential aged care facility.

There is another implication even where the couple continue to live together. They have usually appointed each other as their Enduring Power of Attorney enabling each of them to make decisions for the other if they should lose their capacity to make decisions. When one of them loses their capacity, the other starts wearing two hats – as the spouse and as the Enduring Attorney for the other spouse. In the latter role, a spouse becomes the substitute decision maker for the other spouse – they ‘stand in their shoes’.

This second ‘hat’ can create some significant legal and financial implications for a couple. This is particularly so where they have previously performed what are often seen as the traditional gender roles in the older generational division of labour – he looks after the ‘hard’ issues eg the ‘things’ and the finances and she looks after the ‘soft’ issues eg the home and the family. Where the man loses capacity, it can be a transformational experience for the woman.

If nothing else it also becomes the assumption of a legal responsibility – to ensure the husband’s affairs are managed and his obligations are complied with. Dementia is not a form of death and anyone who contracts it continues to have the usual legal and financial responsibilities before they did. It is now the wife’s task to ensure he continues to comply with them.

Being informed is the key and, dare I say it, this should mean seeking some good legal and financial advice about her new found responsibilities including in relation to such things as:

  • Their tax
  • Their Centrelink
  • Their Insurance
  • Their Superannuation
  • Their Wills

Not only that, if, as is common, they have each appointed just each other as their Enduring Power of Attorney, then, as her husband has lost his capacity, he can no longer be her Enduring Power of Attorney. The wife would be well advised to do a new one.

These are just some of the layers in the cake of capacity that can confront an older person who has lost their spouse to dementia. That is distressing in itself but you can exacerbate the stress if you  avoid the task of  understanding where that then leaves you in terms of life and decision making.

Perhaps it’s time to relieve that additional potential stress and get informed.

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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