When conflict is brewing within a family in relation to an estate or elder law matter, should you involve a mediator or a lawyer? How can you know what the right step to take is in your situation?
HopgoodGanim Partner Brian Herd is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. In this article, we feature an adapted extract from Brian’s book, Avoiding the ageing parent trap, with insights about how bringing in a third party – such as a mediator – can make a vital difference in preventing a dispute escalating between family members.
Family conflict: A common scenario in elder law
Here is a typical scenario we confront:
- An elderly dad has died leaving mum at home by herself.
- She is having difficulties with everyday living activities.
- Her five adult children are, in varying degrees, concerned about her future and her needs.
- Family factions start to form with some wanting mum to stay at home and others wanting her to enter an aged care facility (ACF).
- Mum is anxious to stay home and, fortunately, in terms of her options, has significant wealth.
- Some of the children, let’s call them the ‘right’ faction, think that the ACF is a perfect solution as it gives her 24-hour care and is cheaper than intensive in-home care.
- The ‘left’ faction on the other hand, are anxious that Mum’s wishes be respected and anyway, it’s her money and she can spend it how she likes.
Each faction has legitimate concerns although potentially different motivations. Nevertheless, Mum is usually keen to have all the children involved and to avoid making herself the cause for a holy war. What is important for all of the children to recognise is that this moment in a parent’s life is the classic trigger for either bringing the family together or tearing them apart. Our experience strongly suggests that this is not a time for sibling rivalry or enmities. Instead, they need to suspend their animosities and festering resentments and acknowledge that the family is at a tipping point between unity and uproar.
They then need to go on to recognise the importance of nipping discord in the bud. In our many years on this earth being confronted by these scenarios, has given us a clear insight into the benefits of latter day ‘family planning’ – the crucial need for the family to meet, as a whole, with each other and Mum and discuss the issues and their concerns. In this day and age, you don’t have to be physically present to ‘meet’ as technology enables us to do that.
Of course, all families are different, and some have regressed to a stage, regrettably, where even being in the same room together can cause them to be spiteful. If that is where your family is at then think about an alternative, a mediation.
Bringing everyone together under the guidance and impartiality of a third party such as a mediator. Mediation has been shown to be very effective in reaching consensus. While it may not mend relationships, it will enable the family to focus on the interests of the most important person – mum.
Brian Herd won Solicitor of the Year (Large Firm) at the Queensland Law Society Excellence in Law Awards 2022. He was awarded the 2021 Australasian Journal on Ageing (AJA) Book Award after publishing his book, Avoiding the ageing parent trap, which is available to order from Booktopia.
Next steps
HopgoodGanim has a team of experienced alternative dispute resolution (ADR) professionals trained in a range of techniques to expedite the process of resolving a dispute while protecting their clients’ interests. HopgoodGanim’s ADR professionals include mediators, arbitrators, family dispute resolution practitioners and trained collabourative law professionals.
Our estates and succession team provides careful, considered and precise estate planning and succession advice to ensure family and business assets are transitioned as intended. The team designs estate plans for clients, in addition to supporting with estate administration, estate litigation and SMSF matters. You can find out more about Brian’s expertise and reach out to him and the team with any enquiries related to estate planning, succession and elder law.