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January 12, 2017

What did he want for Christmas? – His Mother-in-Law Out!

Brian HerdBy Brian Herd, Partner at CRH Law, our Lead Legal Professionals at Heather Hill Pathways.

There wasn’t much time for pleasantries with my new client, Barry when he came to see me just before Christmas last year.  He put it succinctly and passionately in the first few minutes of our discussion:

“All I want for Christmas is my life, my family and my marriage back – I want my mother-in-law out and I want her out now!”

This was his lament:

  • In her late 80’s, his mother-in-law, Muriel, had been living with Barry and his wife, Madeline, on and off, for about 3 years.  For the last 6 months, however, she had been living permanently with them.
  • Muriel suffered from a constellation of health issues including early onset dementia
  • Her most frustrating feature, however, was her severe deafness for which she refused to wear her two hearing aids.
  • Barry was normally a quiet mumbler in his daily life but was tired and exasperated with exchanging yells and screams with Muriel and explaining to neighbours that he was not berating or abusing her, just ‘communicating’ and they should call off the police.
  • He was constantly looking for ways to avoid going home at night
  • He believed his wife, Madeline was equally at her wits end but chose not to do or say anything because, well, she was Muriel’s daughter and where else could mum go.
  • In the last week, the situation reached its nadir when one of their daughters rang to say that she would not be coming over to stay on the following weekend because her children (Barry’s grandchildren) found it too distressing with all the noise, tension and yelling particularly at night when the kids were trying to sleep.

Barry had discussed the matter with Madeline and she had finally agreed that he would raise with Muriel the prospect of moving out and into some form of aged care.  When he finally plucked up the courage to talk to Muriel, it was an unmitigated disaster.  The conversation reached new decibels stimulated by anger and frustration.

Muriel was not going to go into one of those ‘waiting rooms’ and any way, she said, they had agreed that she could stay as long as she liked or needed to.

Barry was in a state of revolt and was done with caring.  He didn’t think that vow he made to his wife so many years ago ‘for better or worse’ extended to Muriel, as well.  He had even contemplated moving out and leaving his wife to tend to her mother alone.

So now, here he sits in his lawyer’s office seeking what most clients do from us – help and direction.  In his almost semi-crazed state, Barry probably needed more than just legal assistance.

When he confirmed that they had told Muriel she could stay as long as she liked, I knew I had no alternative but to add to his layers of anguish.

From a legal perspective:

  • There was nothing in writing between them setting out the basis for Muriel’s life in their home but there was an oral admission that it was hers for the rest of her life if she wished.
  • Muriel was not a tenant and, as such, she could not simply be evicted using the residential tenancy laws.
  • Muriel could possibly be classed as a trespasser under the Criminal law and he could go down to the local police station and lodge a complaint and see if they would assist in removing her but then he had that problem about the promise they made to Muriel.

The law is a blunt instrument in disintegrating family situations and is best avoided if discussion or even mediation can work.  Here, the alternative dispute resolution horse had long bolted and the law was left holding the only possible solution.

I won’t recount the miasma that Barry’s life then descended into, suffice to say that he found an ultimate solution in the law – family law – he left the home and ultimately began divorce and property proceedings against Madeline.

This tale of poignancy and pathos may appear an extreme case of family caring gone wrong but, from our legal experience as Elder Lawyers, the family brew of destruction is bubbling and fermenting in more and more homes around this nation.

In part this is due to the increasing reluctance of older people who become dependant to take up the option of residential aged care both because of the aversion to the lifestyle and the cost.

But the most significant reason lies from when the initial discussion is had about mum or dad (or the in-laws) moving in Most of us wear rose coloured glasses.  We don’t really think about, let alone discuss, what the change might mean or its implications.

In addition, while it may be anathema to many of us, documenting the arrangement is also crucial for a number of reasons. It creates an open transparent record of what has been agreed and who will do what, and most importantly, how and when it may come to an end.  A document can also help in being transparent with and appeasing the other members of the family as well who may have some suspicions about what is really going on.

Quite apart from that, documenting can also ensure that, if appropriate, you can comply with the granny flat arrangements prescribed by Centrelink so that no one’s pension entitlements are adversely affected if possible.

We predict that the sort of family tensions recounted above will increase in frequency in the near future.  As the Arnott’s Biscuit mantra says, however – “There is no substitute for quality” – the inevitable stress and anxiety can be reduced if there is a bit of quality discussion and documentation of the arrangement at the outset so that relationships, including your own marriage and family function, can be maintained not destroyed.

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