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The Matter of Mum

By Margaret Arthur, Senior Associate at Carne Reidy Herd Lawyers, our Lead Legal Professionals at Heather Hill Pathways.

Tall, dignified and with a warmth that drew people to her, Pauline was the beloved matriarch of her family.  After she suffered a stroke that put her into hospital and left her incapable of making her own decisions, questions arose when it came time to discharge her, as to whether the 87-year-old could return home.  Her two daughters, Helen and Janet, had always been close, but for the first time, had opposing views.

Both of them were Pauline’s Enduring Power of Attorney and had their mother’s interests at heart.  Helen, the eldest, believed her mother should return home with every possible care being provided for her.  Janet, on the other hand, mindful that her mother was frail and had serious short term memory problems, was concerned that Pauline had reached that tipping point in her life where independence had to give way to dependence and where her safety could be compromised unless she entered a nursing home.

After several weeks of being unable to resolve their fundamental differences, the hospital social worker laid down the law.  As the hospital saw it, Pauline was occupying a badly needed hospital bed, she was a ‘bed blocker’, and the social worker was under pressure, in line with hospital policy, to discharge Pauline immediately.  Shortly after, frustrated by the daughters’ recalcitrance, the social worker picked up the phone and made a telephone call that neither Helen nor Janet had anticipated.

Her call was to the Office of the Adult Guardian, a state funded authority responsible for protecting the interests of adults with impaired decision making.  Each state and territory of Australia has such an agency.  In some places, it is known as the Office of the Public Advocate or Public Guardian.  What Helen and Janet did not know or realise is that these authorities are like elder policemen empowered to investigate situations that pose a risk to an adult with impaired capacity.  One such common risk is where important decisions are not being made for a person and their needs are not being met. It is where well-intentioned people do nothing.

These authorities can also refer a case like Pauline’s to a tribunal with special expertise in assessing the capacity of adults and appointing alternative decision makers for them if necessary.  Again, each state and territory has such a tribunal or court.  If a tribunal is confronted by a situation in which family members are paralysed by their differences and unable to make important decisions in the interests of the adult with impaired capacity, there is high likelihood that a tribunal would do something.  This would be to revoke the power of Helen and Janet to make decisions for Pauline and appoint in their place a benevolent bureaucrat such as the Adult Guardian who can then make all sorts of decisions for Pauline including where she should live.

Pauline’s situation is not unusual.  We have had a number of cases where the Adult Guardian, in place of family, has been appointed to make the difficult decision about where the elderly person should reside.  Although these authorities will consult family members, they have the power to make these decisions and to place people in an aged care facility whether or not that is what the adult or their family want.

Some family members are riven with guilt that it should have come to this and find it difficult to accept these decisions, particularly if the elderly parent is not happy in the new ‘home like’ environment of an aged care facility.  Some of these family members have been so driven and desperate that they do things they would not ordinarily do such as furtively removing their elderly parent from the facility and taking them to live in another city or even to another state.  It is sometimes called ‘granny napping’.  The reality is that taking such action is hardly ever in the interests of the parent.  Not only that, the long arm of the law will almost inevitably catch up with them no matter where they go.

As with Pauline’s daughters, many people are shocked to learn that the decision as to where their elderly parent resides can be taken out of their hands and bestowed on an unconnected mandarin. “This is not what my mother or father would want!”.  That is probably true.  However, the fact that it happens is not a reflection of the apparent shocking state of the law, but, rather the disturbing blindness of some children to the best interests of their parents.  In many cases, parents can be innocent bystanders, if not victims, of their children’s feuds and battles of wills.

Perhaps if people were aware that an inability on the part of family members to make these difficult decisions can lead to the intervention of independent third parties, they might be more inclined to consider possible compromises and to try harder to act in their parents’ best interests.

These days we encourage as many families as possible to discuss these issues well in advance, particularly with the elderly parent, so that everybody can make an informed decision about what should happen in the event of what we call the ‘C’ change – ‘C’ meaning crisis.  Family mediation may also be well worth considering given that it also can be effective in restoring strained relationships as well as reaching a mutually agreed decision.

In the end, as children, we think we owe it to people like Pauline to focus on her interests and not to be consumed by the righteousness of our views or in trying to lord it over our siblings.  The last thing that Pauline would want is some gladiatorial contest between her children.

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