'Til death - or an EPA - us do part

In today's supposedly egalitarian society, unless we are disabled, we all have the capacity to make a sufficient livelihood for ourselves, so there is no justification for competent and independent adult children having any greater entitlement to inherit their parents' estates than anybody else. We allow a person who has not borne any children (such as our PM) to distribute their estate as they choose – except when they marry someone who has borne and reared (likely independent adult) children. Are we not reinforcing privilege and further entrenching disadvantage – if not discriminating against people who have had children?

Having legislated to reinforce a sense of entitlement, are we not also increasing the potential for elder abuse by natural children and step-children – which brings me back to the recent High Court Appeal.

That case – referred to as Strickland and Strickland - concerned a frail elderly couple in their 80s who had been married forty years. It was a second time round marriage for both of them, and both had adult children from prior marriages. They both owned homes until the wife moved out of her home and moved in with him.

She then sold her home and distributed the proceeds to her adult children i.e. they got an early inheritance, but his kids got nothing and would get nothing until he departed the mortal coil – assuming anything was left. His adult children had to rely on his Will naming his biological children as beneficiaries of his estate and - having made provision for his new wife to have life time tenancy of his home - they would need to wait until both departed the mortal coil.

Doubtless, had the couple chosen to separate, the Family Court could have taken into consideration the wife's non-financial contributions to the marital home – and may have ignored their informal financial undertaking made decades before the Family Court came into being. But, in this 'til death us do part' marriage, they remained together until the wife had a massive stroke and her frail husband was unable to care for her at home. She was then placed in a high care nursing home, and the husband continued to visit her and care for her to the best of his ability – including providing for all her financial needs. So what was the problem? The problem was the green eyed monster.

Some years beforehand, and doubtless based on the urgings of children (if not doctors and lawyers), the husband had given Power of Attorney to his biological son, and the wife had given Power of Attorney to her biological daughter.

After the stroke, the mother was deemed as lacking mental capacity to make decisions, and her daughter assumed the role of her legal guardian. It was the daughter who then made application to the Family Court for the marriage between her mentally incompetent mother and her competent step-father to be deemed as ended, and the daughter sought a property settlement to be made giving the daughter funds equating to half the value of her step-father's estate. Notwithstanding that her mother was being well cared for, and that the outcome sought would have forced her stepfather to sell his home (and effectively render him homeless - the Magistrate 'agreed' with the step-daughter, and made property orders to that effect.

The husband appealed and, before the Appeal was finalised, his wife died. The Appeal Court then handed down its orders 'as if the wife had not died' and 'agreed' that the elements of a marriage were essentially severed, and that it was equitable to make property orders, but determined that it was not necessary to enforce those orders 'at that time' i.e. the settlement could wait until after the frail step-father died.

His lawyers then appealed to the High Court and, before final orders were made, he also died. Although the High Court upheld the step-father's appeal, and dismissed the daughter's application for property orders, the reason for the dismissal was that the husband had made adequate provisions for his wife's care, and so it was not deemed necessary to make a property order – and especially not one that would be unjust to either party.

However, the High Court 'agreed' that the elements of a marriage were severed, and not simply because the wife was living apart from her husband, but because - by virtue of her significant cognitive impairment - she lacked the capacity to voluntarily consent to marry, or to remain in, or to end a marriage.

So, where does that leave the thousands of couples, where one party has moderate to severe dementia and has been deemed as lacking capacity to understand the nature or consequences of decisions? That question is especially pertinent, because demented (or deemed incompetent) people can still have (at least some) mental capacity, and can still express their wishes - or even change their mind!

What happens when they change their mind about that "Do not resuscitate" message on their Advanced Health Directive - but their legal Guardian doesn't want them hanging around any longer (spending any more of their inheritance), and insists that mum or dad doesn't know their own mind? The donor is not allowed to protest their case, and no lawyer will act for them, because they have signed away that power to a third party.

Is it now a case that the old need to fear the young - and especially their own?