The New, Nasty Sibling Rivalry

By Adele Horin, Global Mail, March 3, 2013

Mum and Dad are getting old, needing care, but hey, the kids, they really need the money. Early Inheritance Syndrome is tearing families apart — and it’s about to get worse, with aged-care reforms putting the family home in the balance.

Nearly all people on the other side of middle-age know someone engaged in bitter battles with their siblings over the care of ageing parents, and their money.

Brothers and sisters who may have drifted apart or loathe each other, who have lived in separate homes, cities or countries for decades, find themselves in their 50s and 60s drawn into the old family dynamics whether they like it or not. When Mum breaks her hip and goes into sudden decline, when Dad’s dementia can no longer be ignored, when the status quo is upset and the family must re-engage to make decisions, the scene is set for sibling rivalries to re-emerge.

It’s a scenario older than King Lear. The psychological underpinnings are eternal: jealousy, greed, guilt, and competition for parental love.

But forces in modern society are increasing the number and ferocity of sibling struggles, according to the growing band of “elder” lawyers and mediators who specialise in the area.

“I work in ugly things day after day,” says Pam Suttor, a specialist in elder law who co-chairs the Law Council of Australia’s national elder law and succession law committee.

Parents are living longer. The 85-and-over age group is the fastest growing in Australia, and more have dementia. They are staying at home longer, dependent on family care for extended periods. There are more children from those big, post-war families to wrangle over decisions: who is the primary carer, who has financial control, who is mismanaging Mum’s money, who isn’t pulling their weight ...

And a parent’s death doesn’t end the fighting; the value of the parental home has increased so dramatically over the decades that more siblings consider it worthwhile going to court over the estate, destroying whatever skerrick of good will may have survived.

“Thirty or 40 years ago, it was a huge thing to dispute a will, and only the rich did it,” says Rodney Lewis, a specialist lawyer and author of Elder Law in Australia. “With increasing wealth we’ve become more litigious and this is one of the areas it’s manifest.”

WITH MAJOR FEDERAL CHANGES in aged care funding to start next year, the scene is set for potentially more intra-family battles. More people will have to sell the family home — or otherwise find serious money — for nursing home bonds for high-level care. Previously this was the case for only low-level care centres. With high-level care, it will be the sons and daughters called upon to decide on behalf of parents with dementia whether to sell the home, or to battle on caring for Mum or Dad themselves — and preserve the inheritance intact.

The dirty sibling wars over parental care, love and money have remained under the radar till recent times. But that has begun to change. It is only in the past five years, for example, that the Guardianship Tribunal of New South Wales, established 25 years ago, has begun to publish (a limited selection of) its decisions.

Originally established as a legal forum to protect the finances and wellbeing mainly of people with intellectual disabilities, it increasingly deals with the affairs of elderly people.

“I saw the best and worst of families, and there were horror stories,” says Diane Robinson, former president of the tribunal, who saw the increasing intensity and frequency of disputes over elders during her two decades at the tribunal.

Sibling fights are typically, but not exclusively, about money. “Some adult children see Mum’s money as their own even when she hasn’t died yet,” Robinson says. “Many times I’ve heard people say, ‘She doesn’t need money, it’s going to be mine shortly, anyway.’ I’ve said, ‘Why not send her flowers every week; she loves music, buy her a stereo.’ It’s very convenient for them to think elderly people have few needs.”

While parents are alive, but their capacity to make decisions is in dispute, control of their affairs, their money and who will make decisions for them are usually heard in state guardianship or administration tribunals if the family can’t settle the matter itself. When parents are dead, and the dispute is over a will, the matter is heard in the Supreme Court.

Trouble commonly erupts when a parent sells her home and moves in with the adult child who offers to care for her until death. The parent transfers a large sum of money to the carer. It may disappear into elaborate home renovations, or into the adult child’s business ventures in a case of what Robinson calls “early inheritance syndrome”.

Take the case of the daughter who accused her older sister, the father’s favourite and primary carer, of using the proceeds of the sale of their father’s house to buy a newsagency. There were suspicions of financial abuse and lack of proper care, but the father was deemed sufficiently competent to make his own decisions. Elder law specialist Peter Gauld recalls that the younger sister was powerless to stop the inheritance being siphoned off into her sibling’s business.

“The relationship between the siblings couldn’t have been worse,” Gauld says. “The younger sister intended to dob her sister into the Tax Office and Centrelink.”

Under the law, money transferred to a child by a parent is presumed to be a gift unless there is strong evidence, or documents, pointing to the contrary. And if the carer reneges on the bargain of lifetime care, evicts the parent or consigns her to the most basic nursing home on the grounds her needs are simple, there may be little the other siblings can do.

The world of carers is replete with hard-working, long-suffering and loving siblings co-operating, muddling through, going to herculean effort to look after their frail and dependent parents. But at the same time there has been rising concern over elder abuse, particularly financial abuse, which has prompted some official inquiries and initiatives that have shed light on the shadowy world of family care.

A 2011 study by Monash University, commissioned by State Trustees Victoria, cited a consensus among professionals that one quarter of families failed to take care of their older members “within an environment of mutual love and trust”. (original study can be viewed here)

The mean age of victims of financial mismanagement was 80, women were more likely than men to be abused, and the perpetrator was “most likely to be a son or daughter’’.

The study, For Love Or Money (intergenerational management of older Victorians’ assets), said older people believed “when you have a family you do not need documents’’. But “impatient children” had an overwhelming sense of entitlement to their parents’ assets at a time when those assets were increasingly needed to fund long-term elder care.

WHEN MIDDLE-AGED SIBLINGS are forced to “re-enter the house of childhood”, as author Francine Russo has put it, the worst implosions are captured in the decisions of the guardianship tribunals.

Take the case of Victor (names changed for legal reasons), an 84-year-old with mild dementia and little English; father of five adult children, and husband to Loretta, who also suffers dementia. The family had hung together until crisis struck. But when Victor was rushed to hospital after a fall, the unravelling began.

Loretta’s condition suddenly deteriorated and she was put into respite nursing care which became a permanent placement. It was over Victor that the fight between the siblings raged. After he was discharged from hospital, the siblings disagreed on whether he should join Loretta or live at home. At the nub of the dispute was “how best to honour their parents’ wishes to be together balanced with their parents’ health care needs”, according to the Victorian Civil and Administrative Tribunal.

Two siblings, one with an enduring power of attorney to manage the father’s affairs, were adamant he should be with his wife, “as they had always been together’’, and he was too confused and ill to be cared for at home.

Three siblings challenged their brother’s power of attorney. They argued they had already set in place a 24-hour, seven-day a week roster for caring for their father, augmented with home care services. He’d looked after his wife for three years since the onset of her dementia, and he’d had enough, they said. He didn’t want to join Loretta in the nursing home.

A hearing room filled with the warring siblings, some of their spouses, their father and his interpreter, saw family life at its worst. One sibling claimed she had been verbally threatened by her siblings when she had visited her father. They weren’t looking after him properly and he had been put on anti-depressants, she said. Another sibling said he was being denied access to his father.

In this case, the decision was not so difficult for the tribunal. Though it was agreed Victor had dementia it was not so advanced as to rule out his having a say in his own life. Given the opportunity, he told the tribunal he wanted to stay at home. But the tribunal felt it necessary to appoint an independent guardian for a limited time to sort out the issue of the estranged siblings’ access to their father.

In most cases the sibling who becomes a live-in carer makes a huge sacrifice. But cases of the free-loader carer are not unheard of, according to elder lawyer Brian Herd.

Typically they are the no-hoper sibling who never left the parental home, or had to move back in. They enjoy free board and exercise tyrannical control over an intimidated parent, shutting out their brothers and sisters.

Alan (names changed for legal reasons), a father of two adult children, had lived with his 89-year-old mother in her house for 12 years. He had enduring power of attorney to manage her affairs. His sister, Sandra, challenged this authority, claiming their mother “would never have given Alan control over anything’’. She said he refused to pay rent or leave the house even after the mother was moved into a low-care nursing home and funds were needed to pay the $150,000 accommodation bond.

“He considers the house belongs to him,” Sandra said.

The guardianship tribunal found Alan was “unable to distinguish between his own interests and that of his mother’’. But it also found that in relation to the need to sell the house, Sandra was primarily motivated by “hostility towards her brother’’. It appointed an independent financial manager.

As more octogenarians and nonagenarians skip a generation in their bequests, considering their grandchildren more needy or worthy, Supreme Court battles are increasingly fought between baby boomers and their children or nieces and nephews.

In the case of Kastrounis v Foundouradakis, 88-year-old grandmother Erini had transferred her house before death to her three favourite granddaughters in their 40s. They reaped $180,000 each while Erini’s three children in their 60s were left $10,000 each in the will. “I want to look after the people who have looked after me,” Erini reportedly had told her lawyer. But two of Erini’s children challenged in the Supreme Court of NSW and in the end the granddaughters had to hand over $65,000 and $35,000 respectively to their uncle and aunt.

THE JAUNDICED EYE OF the elder law specialist sees sibling skirmishes everywhere because the brothers and sisters who co-operate magnificently or do their best through the challenge of elder care never need grace the specialist’s doorstep.

Even so, for most baby boomers with frail and dependent parents, this is a new life-stage that requires them to make “a developmental leap”, says Francine Russo, author of They’re Your Parents Too! (How Siblings Can Survive Their Parents’ Aging Without Driving Each Other Crazy).

“How we navigate this passage with our siblings determines, in large part, whether we remain a connected family after our parents die, and what our connection will be like,” she says.

Lawyer Brian Herd believes many of problems could be avoided if parents and siblings drew up a legal contract known as a Family Agreement. Such agreements would bring greater transparency to what he calls “the wild west of family care’’, making explicit the under-the-table arrangements over parent-to-child loans, for example, or unspoken expectations about care.

The agreement might spell out that the child who moves in with Mum to be her full-time carer could be paid a wage from Mum’s funds at the local community home care rates. “This potentially reduces disputes over wills by compensating the carer in the parent’s lifetime,” Herd says.

If only parents when capable of doing so made more decisions about their future needs, siblings might have an easier time. Parents don’t want to be a burden, says Herd, but they don’t plan for aged care, either. “People think they’ll be abseiling in old age.”

As Russo points out, siblings should clean up their relationships before parents have a problem. In the midst of a crisis everything is worse. But few siblings, it seems, ever take this suggestion.