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Custody, disputes and disharmony with adult children in families

By Brian Herd / 08 June 2023
5 min.
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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.

Adult children ‘isolating’ their parents

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.

Scenario

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 carer’s 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:
  1. He changes the locks on the doors of the home so Melinda just can’t turn up unannounced with her key.
  2. He tells Melinda that she can’t take Mavis on outings anymore without his approval.
  3. 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 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.

Taking action

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.

Estates and succession team

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.

08 June 2023
Key Contacts
Brian Herd
Partner
Brian is a Partner in our Estates and Succession team.

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