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So what are the risks when one child is the carer?

One child as carer for parent
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The care arrangements for an elderly parent can often lead to jealousies, resentment and dispute within families.  If it is proposed that one person be the primary carer, open discussion amongst all family members, with the assistance of an experienced lawyer, is essential.

Setting

Antony is 86 years old and unable to remain living alone in his own home.  His daughter Genevieve wants him to move into her home.  She and her husband will build a small apartment for him to live in, at the back of their home.  It is not clear who will pay for this.

Plan

Genevieve proposes quitting her job so that she can look after Antony full time.  Antony’s other children, Grant and Susan, are concerned about potential financial ramifications.  Antony’s will currently leaves his whole estate equally to his three children.

What are the risks?

  • That Genevieve challenges Antony’s will after his death, claiming that she should receive more than one third of the estate because of the financial and personal sacrifices she has made in caring for Antony;
  • That Genevieve, after Antony’s death, claims that Antony promised to leave her more than one third of his estate, in exchange for her agreeing to care for him;
  • That Antony pays for the extension to Genevieve’s home, and after Antony’s death (or if he decides to move out), there is a dispute about whether this was a gift to Genevieve, loan or was intended to give him an interest in the property.
  • Genevieve and her family prevent Grant and Susan from having any significant contact with Antony, and use their influence over Antony to have him change his will in their favour or to make gifts of money to them
  • If Genevieve has power of attorney from Antony, or has access to his bank accounts (as a signatory, or via his credit cards), she uses Antony’s money to pay expenses which she claims are for him but which Grant and Susan believe are really for her own benefit.

Minimising the risks

Some things which Antony, or Grant and Susan, can do to minimise these risks include:

  • Having Antony make an appointment of enduring guardian, appointing all three of the children, and specifying that any two of them together must make decisions about Antony’s personal care.  If he loses capacity, this enables Grant and Susan to overrule Genevieve if they believe he is not receiving proper care from her.
  • Ensure that a different person holds the purse strings, from the person who is providing the care: ensure that Antony appoints Grant and Susan as his attorneys under power of attorney, and not Genevieve
  • Have a lawyer prepare a family agreement before Antony moves into Genevieve’s care. This would record the family’s agreed intentions and provide evidence to counter any contrary claim made later.  It would also create an environment in which such a claim is much less likely, because of shared expectations and understandings.
  • Obtain legal advice before agreeing to any arrangement which involves additions or improvements to Genevieve’s property, to clarify who pays for them and what rights each person has.

Contact a member of our Estate Planning Team for expert assistance in all areas of parental care arrangements.


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