A transfer of assets between an older person and their adult children or other family members is not inherently abusive. Problems generally arise because arrangements have not been thought through and legal and financial advice has not been sought; then the situation changes, and there is no written record of what was agreed (Hall 2003, p. 24). When the agreement fails, the relationship may degenerate into abuse.
The most prevalent kind of transaction involved in financial abuse is a disposal of land owned by the older person, or an investment in land without adequate protection or for consideration which is illusory. A loose agreement to care for the older person usually accompanies the transaction.
‘Assets for care’ transactions can take many forms: the direct transfer of property to an adult child (or other relative); the use of the proceeds of a sale of the older person’s property to build a ‘granny flat’ at the back of an adult child’s property, to discharge the mortgage on an adult child’s property, or to buy another property and place it in an adult child’s name; a conveyance of property to an adult child as joint tenant.
Why do older people agree to these transactions?
The older person is usually trying to keep assets in the family, and is trusting that their adult child or younger family member will care for them for life and in preference to ‘aged care’. Most family members involved in these transactions have sound intentions and act appropriately, but there are too many cases where the older person’s wishes and interests have been overridden by over-protective or even fraudulent behaviour.
Older people often remain silent about abuse and fail to act due to:
- fear of the costs or consequences, such as being removed from their home, being placed in an aged care facility, losing the right to see grandchildren, losing a relationship with a family member or the chance of providing parental love;
- feelings of shame about their adult child’s behaviour;
- not wanting to reveal deeply held personal matters;
- the tendency to excuse the failings of their children or reluctance to get their children into trouble (protective love);
- lack of understanding that what is occurring is abusive;
- cognitive impairment;
- multiple health problems.
These kinds of cases are complicated, and your client’s right to self-determination may appear to be at odds with your duty of care. Your client may seem to be accepting exploitation as payment for care in what you might consider to be a financially unwise action but one taken in the knowledge that a relationship is at stake. Research shows that the maintenance of family relationships is consistently given priority over effective accountability of family members (McCawley et al. 2006). Also, while the sacrificing of home ownership may be irrational, it would be wrong to assume that it was intended to be altruistic (Barkehall-Thomas 2008).
Sale of house in exchange for care and accommodation
Patrick is 84 years old. His wife Maud recently passed away, and he now lives alone in a house he owns in Melbourne. Since Maud’s death he has been struggling to care for himself at home and believes he is in need of some support in the home. He does not have many friends and his only son, Bruce, is pressuring him to sell his house and move in with him and his family. Patrick does not want to leave his home but Bruce has threatened to put his father into residential aged care if he does not agree to the arrangement. Bruce told his father that he should use the proceeds of sale to pay off Bruce’s mortgage and in return, he would have accommodation and care for life. Patrick has no other family and is dependent on Bruce and his grandchildren for emotional support. Patrick feels compelled to do as his son says and comes to you with Bruce to arrange the sale of his home.
Warning signs in this case include:
The older man’s dependency, loneliness, health problems, the recent death of his partner; pressure from son; lack of benefit from disposing of assets; and no future protection.