Brian Herd

Brian Herd

Guest Blogger at See Full Details
Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care.
Brian Herd

It is a life-long devotion to duty for a significant proportion of the over 2 million family carers in Australia, namely, parents (often elderly) caring for their disabled adult children.

Longevity, however, is not all that it’s cracked up to be. As carer parents grow older and suffer the slings and arrows of ageing, there are 2 major events that can impact on care for their loved ones – the parent’s death or disability. The effect of these events can vary depending on the complexity of the caring scenario. Recently, for example, we assisted a woman in her late 70’s who was caring both for her 82 year old husband with dementia as well as their 61 year old son, who suffered from a congenital brain disorder.

Elderly carers tend to suppress their subliminal fear of adverse events and find it difficult to confront and plan for them. In part, this can be due to a misguided faith in what we call the ‘delegation of devotion’, relying on their other children to carry on the caring tradition.

It is not uncommon in families where, as parents age, the disabled child’s siblings can start to assume increasing responsibility for the management and care of their disabled brother or sister. While the parents are alive, the other children can feel some moral imperative, not so much for their disabled sibling, but more for their ageing parents to relieve them of the burden. However, this sense of duty can quickly evaporate when the parents die or even lose their capacity.

This is exactly what happened in the Kalfin family.

Harry Kalfin, a widower, had 2 adult daughters, Judith and Debra. They couldn’t have been more different. Judith was a successful businesswoman and Debra suffered from significant and life-long medical issues, was blind and depended substantially on her father’s support.

In the denouement of his life, Harry had become increasingly anxious about Debra’s future. He was concerned that if he left her a large inheritance from his extensive estate, it would all just wash through her fingers. Shortly before his death, and after a discussion with Judith in his hospital bed, Harry decided to change his previous Will which gave his $4million estate equally to Judith and Debra. He made a new Will which gave everything, instead, to Judith in exchange for Judith’s oral promise that Debra would be looked after and have everything she needed for the rest of her life.

Harry’s eyes then closed for the last time and Judith’s eyes opened wide. In fact, they veritably lit up. Just after discreetly exclaiming ‘Eureka’, she let Debra know she could now fend for herself and ‘whistle dixie’.

Debra dutifully sued Judith, her sister. Her claim was for a breach of contract by Judith in failing to live up to her promise to her father to take care of Debra. It was estimated that it would cost some $2million to provide the care and sustenance that Debra needed for the rest of her life. Debra was ultimately successful in receiving $1.4million.

The tragic irony was that Debra’s success defeated Harry’s wishes in 2 fundamental ways:

  1. Debra could now spend the money as she wished; and
  2. Any relationship between Judith and Debra was irrevocably destroyed.

While you can be understandably highly critical of Judith’s blatant opportunism, in the end, the dissipation of his desires and the implosion of his family were really down to Harry’s follies and failures:

  1. Expecting Judith to do the right thing – despite the almost irresistible incentive he placed in front her, not to.
  2. Doing it on the cheap – he wrote his own last Will, a DIY version.
  3. Not seeking any advice from those ‘piranhas’ he called lawyers – a good lawyer would have told him about some intelligent devices to insert in his Will (such as a disability or protective trust) which could have achieved his aspirations for Debra and kept her relationship with Judith after his death (and avoided a dispute).
  4. Ensuring his estate was reduced (as it was) by the legal costs of $728,740.00 and thereby unwittingly including the lawyers as default beneficiaries of his estate and depriving his own beneficiaries.

Like many stories from the world of life, death and the law, this one doesn’t have a happy ending. But it does have a moral – feel free to trust your children on earth and to take that trust to heaven with you. However, just as many of us risk manage our lives by insuring our car, our house and other things, why not risk manage your death and insure the trust you repose in your children – get a bit of ‘trust insurance’.

Good lawyers provide ‘trust insurance’ and, for an appropriate premium, can give you all the tools necessary to ensure your dreams and desires for your disabled child are fulfilled.

In the next Part 2 installment on this important topic, I will look at the implications for your adult child if you should lose your capacity and be unable to continue to care.

To contact  CRH Law  for more information or to access their services go to http://www.crhlaw.com.au/  or click here>>

The thoughts of this blog are of the individual writer and not necessarily those of the Nurses for Nurses Network. To read our full disclaimer click here >>

WP Twitter Auto Publish Powered By : XYZScripts.com