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Feb 16 , 2023
A lawyer has lifted the lid on the “legal and emotional minefield” that can arise when a parent or parents move in with their adult children and the relationship turns sour.
Despite her concerns, the University of South Australia’s law professor Eileen Webb has acknowledged that “when it works, it can work brilliantly”.
In most cases, it’s a “quid pro quo” arrangement, with older parents able to bring significant money to the table in the expectation that they will have a roof over their head for the rest of their lives and be cared for by adult children.
In exchange, the financial injection often wipes out or reduces the child’s mortgages, helps with household bills and can ease childcare costs and responsibilities.
However, should the arrangement break down – through divorce or when older people need to move into aged care and require a deposit – what legal rights do older people have?
As it stands, they have none.
“It is becoming more common for adult children and their parent/s to pool housing resources, but the law has not come to grips with these arrangements and something needs to change,” Professor Webb said.
“The law only looks at whose name is on the property title, and in 99 per cent of cases, it is the adult child and perhaps his or her partner,” she noted.
“The older person doesn’t have a leg to stand on, unless there is a legal contract in place, which is very rare.”
She believes it should be compulsory for elderly parents’ names to be listed on a housing title if they have a financial interest in the property, however small.
In the event of a shared living arrangement turning sour, the academic said elderly parents face “difficult options”.
These may include taking their adult child to court, which is expensive, often lengthy and stressful, registering for public housing, entrance into the private rental market, or being assessed for aged care.
The professor said all of these options present problems financially for an older person, as most of their assets are usually tied up in the adult child’s home.
She believes it is time that there was a legal solution devised to protect all parties in these types of scenarios and is an advocate for Civil and Administrative Tribunals in each state to play a role in the event of family living arrangement collapses.
The academic said that since these tribunals currently have power to determine guardianship involving older people and “there is no reason why they shouldn’t have jurisdiction when it comes to these situations”.
“It is a more user-friendly option than the whole court process, and more streamlined, quicker, cheaper and not as intimidating,” she went on.
Considering the law as “struggling” to deal with these sorts of financial interests, Professor Webb said that the next best thing “is to deal with it through tribunals or property deeds”.