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CHAPTER 1

PLANNING ISSUES

GENERAL POINTS

• The circumstances in which we each find ourselves are probably as many and various as are our fingerprints. There may be an overall similarity but the detail will be different; there will be nuances. In consequence, each case has to be looked at on its own individual facts and the combination of those facts.
• It is for that reason that specific and individual professional advice should be sought where necessary. A slight difference in circumstances will change entirely the decisions which are reached.
• It has been my experience that a slight delay in acting may well affect decisions reached and action taken whether for good or bad.

I have set out below some of the individual factors that children and parents need to have in mind when planning generally for the future.

SPECIFICS

1. Family size

Family size in general and numbers of siblings in particular can play a vital part in forward planning. Who, one has to ask, will there be to take part in the care of parents and in the decision making process? We are now well into the age of small families. A family with four children is now deemed to be large. Two is perhaps more the norm. There are large numbers of people with few, if indeed any, family to support them in later life. Often it may be left to friends or professional people to provide the support.

2. Family location

It is fine having several children to share the load but where are they? Those close at hand are probably the ones upon whom the major caring role will fall. Those, even in this country, but at a distance may be either unable or unwilling to become involved in the care of parents. With even the best will in the world, a child in Cornwall with a parent in the North of England will have almost as much trouble in providing practical help as would a child on the other side of the Atlantic; that should not, however, prevent their lending moral support to those closer at hand.

3. Family attitude

Perhaps the main problem in the satisfactory provision of help for parents by children will be one of attitude. It is one of the saddest and most frustrating parts of my work to see families where care of parents falls upon one child when there are others who not only simply refuse to shoulder any responsibility for care but who cause grief to those who do. Often that grief may not stem from a child themselves but may arise from interference from a husband, wife or partner. I have indeed seen it arising from the interference of a grandchild and from outsiders.

Parents and children have to have in mind that there are, putting it quite strongly but realistically, some manipulative and mischievous people who we have to count as relatives and it is wise that in forward planning the nature and character of relatives should be taken into account.

Parents in particular need to have regard not only to which child sends them the largest Christmas or birthday card but also which child or children invest their time in them and who are prepared to help, so far as they are able, in a practical way. Frequently, a child living out of the area who sends a posh birthday present once a year will be viewed more favourably than will the child who shoulders the unglamorous day to day care of a parent.

4. Perverseness

Some older people, as well as some younger ones, can be downright perverse.

This may be as a result of illness but often it is down to straightforward bloody-mindedness, stubbornness and unwillingness to consider others.

Whilst children must consider the wishes of parents so also parents must consider their children and their circumstances. Sometimes they must accept that as they become infirm some changes in their living accommodation may become necessary if they are to remain safe and if they are to help their carers (children) to help them.

It is better that this is done in a structured and organised way than to be forced upon them in an emergency as, for example, following an accident or the death of a spouse or partner.

Similarly, in terms of handing over control of their affairs, parents ought to be prepared to delegate the management of their affairs to others, or at any rate put in place appropriate arrangements at an early stage. My question to parents who may read this is “Could you be perverse?”

5. Family trust

A critical factor in forward planning is the trust which exists within the family; the trust that exists between parents and children generally, between parents and individual children and, perhaps above all, between the children themselves. This will have been affected and influenced in many cases by the values of the parents in the past and the values that they have instilled into their children in the past.

Parents must also remember that they themselves can continue to cause problems amongst children by playing one off against the other. Some older people can be manipulative. They should understand that such manipulation is generally counterproductive.

6. Health

The health of family members may play an important part in the extent of the support provided by children. This does not just mean physical health but also mental health.

7. Finance

The financial resources of the children may well affect the level and type of support that children may be able to give to the parents.

8. Work commitments

Clearly the work commitments of individual family members may seriously impact on the level of care which children can provide for parents. This may not only be in terms of time spent at work but also location of that work.

It may be, however, that a child who is ‘time poor‘ may be ‘cash rich‘ and can offer financial assistance even if not practical help. Whilst not being able to provide ongoing care they might be able to provide respite care.

9. Family commitments

Those with young children, disabled children or a disabled partner may clearly have great difficulty in providing much practical help or support for parents.

10. Family abilities.

Children need to consider where their strengths lie. A child may have no financial acumen but may be a brilliant carer. A child may have great ability in organisation, legal and financial issues, but no practical skills. It is important that children should acknowledge their own and others’ strengths and weaknesses and prepare to adjust and co-ordinate their activities accordingly.

11. Family history

One of the factors that families often overlook in planning for the future is that of family history. In most families there are skeletons. Parents in particular need to consider whether there is information that needs to be imparted to children or if children think there may be information that they need:

• information about affairs that may have lead to the birth of illegitimate children;
• information as to whether children are of the whole blood or only of the half blood;
• information about estranged children who may be unknown to others;
• information about previous marriages;
• information about even such things as basic as whether parents are or were actually married to each other;
• information about genetic disorders;
• issues of incestuous or similar relationships.

Parents have to remember that after their death, matters of inheritance may be affected by some of these issues. Additionally, there may be matters of life and death which may be determined by these issues. Science is developing and has in recent years developed procedures undreamed of only ten years ago for creating children and for determining parentage. This can give rise to interesting legal complications and the dredging up of skeletons long since thought to be well and truly buried.

What skeletons are there in your cupboard?

12. Acknowledgement of problems

Clearly where an older person is suffering from mental health problems it may well be impossible for them to appreciate that there is a problem and that they may need help.

However, there are many older people who, whilst admirably trying to maintain their independence, may well cause great anguish to their families by refusing to acknowledge at all that they may need support now or in the future.
There is no easy solution to this.

13. Openness

Following on from the last point many older people play their cards very close to their chests. They are unwilling to divulge any information about, say, their finances to even close family. Whilst failing to give information may well be wise in some families, older people must appreciate it may well cause those looking after them, or who may have to look after them in the future, great difficulty in supporting them; it may well hinder the carer in obtaining all the help and full benefits to which they may be entitled and in managing their affairs generally.

14. Obtaining reliable general help and information

Access to reliable information is vital in the planning process. Sources and quality of information will vary from place to place but generally there are significant amounts of good quality information and advice about if this is sought. The time in researching the various topics may be considerable and it is important that the enquiries should start early and not just when crisis occurs. Trying to make decisions at the same time as experiencing personal trauma and obtaining information is a sure way to get it wrong.

I have set out in Appendix 2 some sources of information.

15. Legal advice

Anyone who has read this book in its entirety will realise that the issues involved can be complex. More to the point many of them are interrelated. I cannot emphasise too strongly the importance of obtaining legal advice specific to your family circumstances. This book is no substitute for individual legal advice.

Many moons ago, in my early days in the law, I read a legal help book on renting property. Every few pages it said it was essential that the reader should obtain ‘good’ legal advice. As a newly qualified solicitor I felt offended by this expression. Surely all legal help was ‘good’. I now know better. I now know that there are many sources of so-called legal help ranging from the man in the pub through legal programmes on television to senior barristers. Some of it is excellent; some of it is not so good. There is much mythology doing the rounds in this area of the law.

You might expect me, as a solicitor, to say that obtaining help from a solicitor is the preferred course and, indeed, I do say that. It is, however, important to find the right solicitor. Recommendation is probably the best course but recommendation should be from a reputable source. Do bear in mind that solicitors and other lawyers (for example, licensed conveyancers) can now pay referral fees to third parties to introduce clients. Such referrals may well be made irrespective of the quality of the service to be provided and irrespective of the expertise of the solicitor concerned. Referrals via this route are probably best avoided.

Dealing with older people and their affairs needs a solicitor who has knowledge of a wide range of legal topics including wills, probate, court of protection procedures, property law and so on. It also needs a solicitor with an understanding of the way in which social services operate, how care is financed, how care homes are run and the standards which should be expected. The solicitor needs to be prepared to adapt his or her approach to the very specific requirements of the older client and who can communicate with an older person in their own terms and at their own speed.

Above all, it is essential that the solicitor should have the integrity and strength of character always to act in the best interests of the older person irrespective of what pressures may be brought to bear on him or her by third parties.

Choose carefully.

Finally, I have emphasised the need for good legal advice. Legal advice can come cheap. Good legal advice does not. As in most areas of life you get what you pay for.

Dealing with the affairs of older people can be time consuming and stressful even for professionals. The responsibility on a solicitor is frequently considerable. If you want the job to be done correctly and professionally be prepared to pay a proper fee. Failure can, in the long term, be very expensive.

16. Clear cut answers

There may be a tendency to expect that in planning for the care of older people all decisions will be clear cut and easily made. For the reasons set out elsewhere in this chapter that may well not be the case. Additionally, however, it must be appreciated that circumstances change both in the long term and in the short term and what may be a good plan today may, because of say, an intervening medical problem, be a bad plan tomorrow.

A willingness to change direction and an acceptance that it may be a few steps forward and one step back, is an important quality.
It must also be understood (a factor that is not taught to law students!) that there are many grey areas in dealing with the affairs of older people both in terms of law and also because we are dealing with human beings who may well have their own agendas and wishes which may not always be honest, logical or wise. This has to be taken into account.

17. A word of warning: Taking care of the carer

For anyone who becomes responsible for looking after an older person and their affairs the responsibility can be onerous. This will particularly be the case where that older person is someone for whom you care deeply and for whom you are keen to do your best.

Frequently, the task will arise not singly but in pairs, if both parents are involved. It may arise in multiples since it is quite possible that in-laws may also be at that time of life when they too need looking after. Indeed, there may even be extended family of aunts and uncles who may need support.

The people who need support may all need it at the same time or they may follow each other in succession over a number of years.

Whichever it is, the toll on the ‘carer’ can be great.

My experience is that men, in particular, can appear to suffer more than women: not because they care any more but because women are more used to taking on a caring and nurturing role and also because men are less likely to be prepared to admit that they are finding it stressful and be prepared to talk through the issues.

However, whether the carer be male or female, young or old, it is important that he or she should realise and acknowledge the stresses of caring especially when they are themselves holding down a job and possibly dealing also with the following generation.

They must ensure that:

• they pace themselves and consider whether there are any tasks or roles (for example, in outside organisations) that they can drop or suspend while undertaking the caring role but yet without themselves becoming isolated;
• they look for and accept any practical help that can be provided by appropriate outside agencies;
• they consult their GP if they find themselves suffering from stress or depression and be prepared to accept any chemical help or counselling that they may be offered. There really is no disgrace in accepting that you are human;
• they find someone in whom they can confide about their feelings;
• they consider whether, if finances permit, they can themselves employ help, such as a cleaner and gardener, to do the chores that they would normally do themselves in their own home even if it is only for a few hours each week; having money in the bank is no use once you are dead;
• they are prepared to reconsider promises that they may have made in the past, in better times and when they were younger. The classic example of this is the promise made to mum or dad many years before that ‘I will never “put” you in a home’. Most of us, if we are decent, would prefer to see our older relatives living happily, healthily and independently in the community. The reality is that sometimes this simply cannot happen. Sometimes, residential care is the only option.

The important thing is that, where this becomes inevitable, it should be done in a caring and ordered way. There should be few occasions where someone reaches the point where they have to be ‘put’ (a word I find wholly unacceptable) in care. Wherever possible, it should be a case of it being agreed with the older person that this is an appropriate course of action and the older person should be as actively involved as possible in the decision making and the choice of placement.

The placement should wherever possible be on a trial basis; the possibility of going back home should be left open in case the older person decides to return home; doors should not appear to be permanently closed until either the older person accepts the position, becomes incapable of themselves making a decision, or until financial pressures are such that it becomes necessary to break up the home and sell it or surrender the tenancy;

• they remember that if he or she, as a carer, becomes ill that it helps no-one and simply adds to the problem

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