Author Archives: Brian Herd

About Brian Herd

Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.

Are you sliding from compacto to defacto?

I have often written about being, and have many elderly clients who are, alone.

They are not necessarily lonely but more, 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 which doesn’t create a legal commitment (and thereby a minefield) and at the same time, satisfies our needs for involvement, social stimulation or companionship. 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.

There is even a website which has identified this demographic called “Stitch”.

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 70’s and, after a long marriage, she had recently 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 visiting hours. They were about to mutate from compactos to defactos.

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:

  1. You can have more than one ‘spouse’ simultaneously (I believe the record in Australia was 4);
  2. For most legal purposes, ‘defacto’ spouses are the same as ‘married’ spouses;
  3. Having more than one creates a legal minefield, particularly on your death, as each are entitled to challenge your Will (not to mention as are the children from both sides of the family); and
  4. Even ‘compactos’ can slide inadvertently into the ‘defacto’ 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’.

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.

The parent shut out

There is nothing like an ageing, frail and dependent parent to bring out repressed enmities and jealousies in adult children leading the ‘caring child’ to shut out the ‘concerned child’.

Sometimes, the role of the caring child is a function of luck or logistics. They happen to live near mum or dad and are, consequently, conveniently able to provide the hands on care so often required. Meantime, the other children are spread all over the country, if not the world, anxiously awaiting reports from the caring front.

At other times however, as luck would have it, the most available child can be the worst candidate for this crucial role. They may not be well suited for the role emotionally, or even financially. They can also feel emboldened, for example, by the knowledge that their parent has actually chosen to bestow upon them legal responsibility when the parent appoints them as their Enduring Power of Attorney. They can also believe, both because of the power they have and because of a certain martyrdom syndrome, that they are entitled, occasionally, if not regularly, to take advantage of the situation.

Because the law does not create a regime requiring transparency and accountability for the conduct of enduring powers of attorney and because our whistleblowing laws are so inept, what was once, perhaps, a noble commitment by the caring child becomes a tool of enrichment and a weapon of exclusion.

From our extensive experience in later life family dynamics, there is one pervasive technique that distinguishes the gestation of an abusive child and raises alarm bells – isolating or shutting out other naturally interested people. Keeping mum or dad hermetically sealed from the outside world is the obvious way to avoid scrutiny and accountability.

A particularly poignant case of this practice was recently exposed in Tasmania where a daughter (and the son-in-law) had kept her mother in a shipping container without necessary care locked away from ‘interfering biddy bodies’. The trail of tragedy revealed in this case was truly inhuman and inhumane. It contained, however, the familiar prevailing theme – isolation.

To be fair however, some caring children will engage in what they perceive as well intentioned isolation. Away from prying eyes, they can enjoy the sympathy and admiration of outsiders for the herculean task they have assumed. They can want to avoid the input or offers of help from their siblings because, in their eyes, it can only complicate or disrupt the carefully crafted routine they have established for their parent.

Be that as it may, excluding or orchestrating a parent’s contact with the outside world does nothing positive for the quality of life of that parent. It exacerbates an already divided family and can create a maelstrom of negative emotions for the parent who can often feel hapless – like a ventriloquist’s doll.

While it is easy to say, caring for an ageing parent should be a collaborative not a divisive exercise. Where it is difficult, strained, or made impossible, it can be hard to find a way to retrieve the situation.

A number of solutions come to mind including:

  • Agreeing on protocols between the children; or
  • Family mediation.

Where any of these are spurned, or where the relationships are too poisonous, there may be no other option but the legal system in which, regrettably, we are so often involved but which can often provide some recourse, if not repair.

As a final suggestion, it is paramount that, where the ‘outside’ children start to observe the tell-tale signs of isolation of their parent, advice is sought promptly. Delay will only encourage and ensconce the conduct and make it harder (and more expensive) to resolve or unravel.

Properly caring for your parent may mean doing what is necessary to ensure someone else is properly caring for them.

So are you ready for your mum to become a bed blocker?

Many adult children will know the familiar refrain – ‘Mum’s in hospital, she can’t go home and they want her out’. Hospitals label them ‘bed blockers’ – usually older people lying in a hospital bed who no longer need to be there and would be better placed living somewhere in the community (but not back at home).

This ‘she can’t stay but she can’t go home’ mantra was the subject of a recent article by a Ros Coward in The Guardian. It recounted, somewhat poignantly, her experience with her bed blocking mother. To quote from some of her salient comments:

  • “I wasn’t in any way prepared for this moment.”
  • “The following five weeks were terrible. I was very distressed. I felt guilty. I had nightmares about making my mother leave her home.”
  • “Worst of all was the finances.”

While her article essentially bemoaned the cost and complexity of the health/aged care system, it seemed to gloss over a glaring defect. Despite her mother having been diagnosed with dementia some years ago and having had previous admissions to hospital, the author did not seem to have any insight into what was clearly brewing as an inevitable crisis. Her mum would be in this position one day very shortly. The author was now in crisis management mode having, as she admitted in the first quote above, not been prepared.

Many of us become ‘event managers’ for our ageing parents and many of those many don’t do a very good job of it. While they are well intentioned, they are just poorly prepared and, as any scout or event manager would tell you, it is all about preparation, preparation, preparation.

Preparing for aged care is not usually on the list of the 1001 things we should do before we die. It is hard for children and their parents to confront it.  If you want to prepare, try attacking the following three key ingredients to get the discussion started:

  • Knowledge
    • Research the system and the options in order to become wise about it
  • Help
    • Get advice because financial and legal advice can convert your research into wise decisions
  • Money
    • Aged care is not free – it will require your parents to contribute to the significant cost

Alternatively, read Ros Coward’s story above again.

Are You – Living Apart Together (LAT)? or Living Together Apart (LTA)?

Oh the webs we weave in our later lives.

The LAT’s

It seems there is an increasing array of older adults who live alone and don’t intend, or want, to move in with another person, let alone marry them. In response to the scourge of loneliness, however, they often look for, or chance upon, if not find pleasure in, another person’s occasional company. Enough, it appears, that they want to spend regular, quality time with them. This cohort could fall into the category of friends with benefits. In retirement villages they are affectionately known as ‘tip toers’. Demographers have an acronym for them – the ‘LAT’ set – those who are ‘living apart together’.

The LTA’s

There is a more familiar variation on this theme. The LTA set – those who are ‘living together apart’. An elderly women came to see me recently and proudly advised me she was celebrating her ‘silver separation anniversary’. She was still living with her husband but they had been leading separate lives for some 25 years.

The LAW

Believe it or not, each of these arrangements can have significant and secret legal implications including:

  • For the LAT’s, the law could perceive the couple as ‘spouses’ despite the fact they are not married and don’t live together. We call them ‘creeping de-factos’ because, by a process of osmosis, the longer, and the more time, they spend together, the more they can unwittingly fall into the legal definition of a spouse. The consequence is, amongst other things, on the death of one of them, the other may have a right to challenge the other’s Will not to mention any superannuation death benefit.
  • As for the LTA’s, for a married couple, divorce revokes their Wills, separation does not. Separation can also mean being separated under the one roof. The consequence for this group is that any Will they made many moons ago giving everything to their now less than loving spouse, remains their Will. It would be reasonable to think that, in a long period of separation, they would not be wanting to give everything to the other spouse. They may even want to change how they own their home from joint tenants to tenants in common for some very good reasons.

The Message

Subtle changes in your life and your lifestyle can have significant implications on your estate planning. This is particularly so if you are members of the ‘do nothing’ brigade who are very bad at updating their legal affairs when they should and, as a result, really good for my business.

Maybe time to ask yourself whether your new or evolving personal circumstances mean anything for those plans you made so long ago. Chances are they do!

A day to remind

Commemorative days of the year tend to be special events – a rejoicing, a remembrance or a reminder.

Today is World Elder Abuse Awareness Day – a day to remind us that:

• It’s happening;
• It’s getting worse;
• It’s repugnant; and
• The law needs to change to capture the conduct and catch the perpetrators.

It is also a reminder of a poignant pathos – most elder abusers are family members who are usually only too willing to ritualistically commemorate and celebrate their parents’ existence on other special days of the year – Mother’s Day or Father’s Day. That could be the one day, ironically, when a child puts their hand in their own pocket – to give – rather than in a parent’s pocket – to take.

We can’t excuse it as just bad behaviour – it’s criminal – it saps our elders’ autonomy, social relevance, financial security, peace, comfort and dignity resulting in their later lives becoming something to be passively endured instead of actively lived.

There is a mood and a momentum for change – engage in conversation or, even better, join the cause to convert outrage to action.

The rise of tiny living

As much as you and I try to resist it, our worlds will often inevitably get smaller as we age. Often this is evinced in the downsizing of our living arrangements.

This is usually in response to our reducing desire or ability to support ourselves in the traditional family castle, the loss of our partner or, in some cases, the simple need to live in a supportive or caring environment.

In an effort to avoid the so called ‘home like’ environment of aged care, many more of us are resorting to the ‘in-house’ solution and moving in with our family or having the family move in with us. This can often involve the construction of a ‘granny flat’ in, or on, a family member’s property.

One of the downsides of these arrangements is the potential for relationships to break down and the parent being required to leave the granny flat and find alternative accommodation. This can often be difficult, distressing and expensive – not what you want to have to face in later life.

What if there was a way of easing this exit transition that did not involve a complex unravelling of the arrangement and where you could simply ‘pull up stumps’ as they say, and move on?

Entrepreneurs are now developing micro homes on wheels designed to be entirely movable from one place to another. They are variously called Tiny Homes or Tiny Houses. They look like a home, feel like a home (not a caravan) and they are small.

It would seem to be an intelligent alternative in the downsizing options confronting us and a potentially simplified effective exit plan where family breakdown occurs.

Be wary, however, of the need to properly investigate local council and building requirements and the connection of utilities not to mention the legal relationship between you, as the owner of the tiny home and the member of your family on whose property you are proposing to place it. Documenting the arrangement is crucial.

Ageing is so interesting.

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.