Custody, disputes and disharmony with adult children in families
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.
HopgoodGanim Partner Brian Herd is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. In this article, we feature an adapted extract from Brian’s book, Avoiding the ageing parent trap. He discusses isolation in later life, and how adult children can be divisive in alienating their parents from other adult children, with legal complications often arising as a result.
In acting for older people, 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, and at any time, 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, the grandchildren).
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:
He is engaging in a familiar pattern of deprivation done for notionally protective reasons e.g., ‘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 – or whoever else might be involved.
Brian Herd won Solicitor of the Year (Large Firm) at the Queensland Law Society Excellence in Law Awards 2022. He was awarded the 2021 Australasian Journal on Ageing (AJA) Book Award after publishing his book, Avoiding the ageing parent trap, which is available to order from Booktopia.
HopgoodGanim’s Estates and succession team provides careful, considered and precise estate planning and succession advice to ensure family and business assets are transitioned as intended. The team designs estate plans for clients, in addition to supporting with estate administration, estate litigation and SMSF matters. You can find out more about Brian’s expertise and reach out to the team with any enquiries related to SMSFs and broader estate planning.