Money Magazine Australia

It’s a big job: Brian Herd on looking afer ageing parents

Adult children who look after frail parents will benefit from being prepared for the lifechangi­ng challenges

- STORY BRIAN HERD

Ihave devoted myself to the calling of elder law or law relating to older people and their families. I follow the mantra “Doing well by doing good”. For many lawyers, the aspiration of doing good has become slightly perverted – it has become more about winning, not good over evil, or right over wrong, just winning. With families, the last environmen­t you want to create is that of winners and losers. With that attitude, everyone is a loser.

In addressing the convoluted needs and demands of families with the smorgasbor­d of personalit­ies, sense of entitlemen­t and agendas, not to mention the various amounts of goodness and badness exposed in the stress of addressing parent problems, I would like to make a personal and a profession­al plea: no winners and losers please, just some way of finding the best way forward.

This article brings together a potpourri of issues that I have faced over the years of my experience – tall tales and true from within the denizens of families.

SO, YOU WANT TO BE YOUR PARENT’S CARER?

We do a lot of work in the area of family arrangemen­ts involving adult children providing care for their parent/s. It is on the rise and likely to exponentia­lly increase as we live longer and residentia­l aged care becomes more expensive. If you’re thinking of doing it, here are six factors you might want to consider:

1 IT COULD COST YOU MONEY.

In the US they found recently that family caregivers spend the equivalent of over A$9000 a year of their own money towards their caring role, which is not reimbursed. You may have to do the same. However, you should not be backward in coming forward in being reimbursed for legitimate expenses you pay for in relation to the care (but see point 5 below regarding retirement). Even if you are entitled to a carer’s allowance or payment, it may not cover the costs you incur.

2 QUIT YOUR JOB?

It might seem like the logical and rational thing to do in order to provide the care your parent needs, but can you afford to and what are the potential downsides for you if you do?

Keeping your job (if possible) would give you some form of safety net, in the event that your caring role came to an end. If you gave up your job, it may be difficult to go back into the workforce, particular­ly if you are an older adult.

3 MEN DELEGATE – WOMEN DO

Traditiona­lly, men don’t seem to be comfortabl­e with the hands-on demands of caring. They tend to prefer to delegate the task to paid help. Women, on the other hand, tend to get in and do it. That’s why, I suspect, there are more women carers than men. How can you achieve a better balance in the family?

4 A PERFECT CARER?

You will be criticised by other family members for the care you provide even if, on any objective standard, it is very good. You may have to be prepared not only for the work of caring but the slings and arrows of discontent from your siblings (and your parent/s).

5 RETIREMENT – WHAT RETIREMENT?

Many family carers are in the cohort of about-to-be, or recent, retirees. Those plans hatched for your retirement may have to take second fiddle to the demands of caring for an unknown period of time.

6 GET IT IN WRITING

It might sound anathema to many families, but our experience tells us that having a written agreement in place about the roles and responsibi­lities of everyone goes a long way to ensuring the arrangemen­t is transparen­t and in reducing the potential for dispute. No agreement, or an oral agreement, does little to achieve these ends.

The reality of the need for family caring is rising like a wave in a high swell approachin­g the shoreline. At least have a discussion with the family if you are thinking of entering this caring space – it will either ensure that everyone is on the same page or it may even convince you not to do it.

WHEN YOUR RETIREMENT MEETS YOUR PARENTS’ RETIREMENT

Adult children can be so lucky. Longevity means you can now be in retirement at the same time as your parents. You might have less experience in this phase of life, but what the heck – isn’t it great to think that you and your parents can now share something in common in those later mature years. But is it? Applying the old adage “facts tell but stories sell”, here’s a salutary saga on the downside of retirement synchronis­ation.

Alex and Eloise were looking forward to their retirement (as most do). They had plans that involved significan­t periods of away time exploring the planet. Alex had even saved up for a single ticket on Richard Branson’s spaceship. He called it his celestial respite or a nearer-toGod experience. Surprising­ly, they had been assiduous in obtaining the best financial advice they could on their retirement years – they had a plan for themselves. Both of them had other siblings spread all over the country, but they were generally disconnect­ed or disinteres­ted. They each had a retired widowed parent aged in their mid-80s and were “fortunate” enough to live in the same town as their respective parents. As children of the Great Depression, the parents had the usual bounty from their frugality and long working lives – a home, a pension and a passport account with the CBA. They still lived in their own homes, but frailty was creeping up and they were each becoming more dependent on Alex and Eloise.

The parents had each made wills giving everything equally, including their homes, to their children.

Just before their latest sojourn to Tuscany, Eloise’s mum had a medical event, ending up in hospital and unable to return home.

Aged care now beckoned. Remarkably, almost as if it was an subconscio­us attempt to “go out in sympathy” with Eloise’s mum, Alex’s mum suffered a similar event

and couldn’t go home. All their meticulous planning for their own retirement years now came crashing down in the face of their parental crises.

The questions they had to confront included:

• With their limited financial resources, how were their parents going to pay for aged care?

• Would it mean selling their homes?

• Would Alex and Eloise have to contribute themselves to assist their respective parents, for example, drawing down on their hard-earned superannua­tion?

• Would the other siblings contribute and, if so, how?

• How would this affect the relationsh­ip between Alex and Eloise when the matrimonia­l assets may have to be called upon to help their parents?

And so, the list went on.

It raised a number of telling features and revealed a number of unanticipa­ted stress points about their retirement: As part of their financial plan for their own retirement, should Alex and Eloise have included some aspect of financial planning for their parents?

Would it be necessary for Alex and Eloise to enter into a family law financial agreement to ensure that a fair component of the matrimonia­l assets was allocated between their respective parents?

Should their parents consider doing new wills (if they could), especially if their homes had to be sold?

From my experience, this scenario is not unusual. However, very few financial planners ask their clients to consider, and plan for, the potential filial and financial responsibi­lities for their ageing parents as part of their own retirement plans. Perhaps it’s time to do so. Alternativ­ely, we could all just keep working, never retire and drop dead at our desk. Now that’s a tempting choice.

IS YOUR PARENT SLIDING FROM A COMPACTO TO A DE FACTO?

I have many elderly clients who are alone. They are not necessaril­y lonely but, rather, lonesome. They may have lost their spouse or partner through death or divorce. They may have intentiona­lly misplaced them through what I call disinteres­t. Alternativ­ely,

they may live in a parallel universe through the ravages of dementia.

In later life, they may still want to be involved rather than to retreat. They may also not want the potential personal (and family) complicati­ons of another formal marriage or even a de facto relationsh­ip. They may have also heeded their lawyer’s advice that the transition into another relationsh­ip can really leave you in a legal pickle when it comes to who pays for what or, worse, who gets what when you die.

Is there an alternativ­e that doesn’t create a legal commitment (and thereby a minefield) and at the same time satisfies our needs for involvemen­t, social stimulatio­n or company. There is, and we call them “compactos” – people in later life who just want an antidote to social isolation and some companions for the sharing of good times, but not necessaril­y a home or a bed.

But for people whose partner may have contracted dementia and who, as a consequenc­e, are separated, not necessaril­y by desire but by circumstan­ce, there is a particular poignancy.

Some may be committed to their original marriage vow – “till death do us part”. For others, however, especially where the separation comes at a relatively early stage in their retirement, it may be more a case of “till dementia do us part”.

I recently came across an example of this latter developmen­t. A husband and his wife were in their early 70s and, after a long marriage, she had to move into aged care in the relatively advanced stages of Alzheimer’s disease. She no longer recognised him or anyone else in her family. Her life expectancy was uncertain – it could be long or short.

He was a dutiful husband in every sense of the word until, that is, he met a woman who was also visiting her husband in the same facility and in similar circumstan­ces to him. As they say, one thing led to another and before long they were “compactos” socialisin­g together and sharing each other’s company outside the aged care facility.

They irrevocabl­y and irresistib­ly moved to a moral and, as it turned out, a legal crossroads. They were both adamant that neither of them wanted to divorce their respective spouses. They were, however, contemplat­ing moving in together and sharing their lives outside the facility’s visiting hours. They were about to mutate from compactos to de factos.

Lawyers are not trained, or required, to make moral judgements about their client’s life choices. We are attuned to advise on legal implicatio­ns and consequenc­es of those choices.

Put succinctly, you can have more than one “spouse” simultaneo­usly (I believe the record in Australia is four). For most legal purposes, de facto spouses are the same as married spouses.

Having more than one creates a legal minefield, particular­ly on your death, as each is entitled to challenge your will (as are the children from both sides of the family). Even compactos can slide inadverten­tly into the de facto definition and thereby create the same minefield.

Of course, there are legal devices and techniques to address these festering issues. However, in the end, from my experience, the scourge of loneliness and the resulting search for later life happiness will usually outweigh what one client described as these “other annoying issues”.

The best advice in these circumstan­ces is to make your life decisions with eyes wide open and bearing in mind the potential panic attack or moral outrage of your children.

Having more than one “spouse” creates a legal minefield, particular­ly on your death

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