Our country is steeped in culture and tradition. Our blend of African and Indian influences creates a unique identity, setting us apart from many other countries and islands. Our island’s story stems from migration, colonisation, and resilience. Our music, food, and festivals reflect where we came from, the struggles we endured, and the hope for the future we are building. Some traditions will last much longer than others, and some traditions may be so dated that the time for change has come.
In many countries across the world, children journey off to university between the ages of 17 and 18; most never return home to reside permanently, but venture off to job opportunities and life outside of their parents’ roof. Even birds throw their babies out of the nest when it is time for them to fly.
Independence from parents is viewed as essential in some cultures and even in the animal kingdom. In sweet T&T, we have clung to the tradition of extended families. There is a comfort to both parents and adult children of continuing to live under the same roof, long after parents have grown old and frail and children have become parents themselves. A mutual benefit exists in extended families, but only so long as mutual love and respect continue to exist.
Parents during the latter years of their life tend to rely heavily on their children. It has become the norm to include names on bank accounts which holds life savings, to transfer properties, some of which are ancestral, to hand over powers of attorney, include names in business ventures or any such thing.
Parents, in consideration of their natural love and affection towards their children, transfer the culmination of their life work or earnings in an attempt to dually safeguard themselves in old age and to provide for their adult children. Unfortunately, children may love their parents, but they also have natural love and affection towards their own children and spouses.
Decisions taken by adult children may not necessarily be in consideration of the well-being of parents.
Many elderly persons have been locked out of their homes by the sons whom they elected to transfer their lands to. The son who lived with them and whom they believed would care for them locked them out so that they could occupy the home only with their spouse and children.
On the other hand, there are adult children who have been included in the bank accounts holding life savings and emergency health care money, who, upon being added, decided that the money was more urgently needed for their vacation or new care or deposit on land and bled accounts, leaving parents without any money.
Our laws afford little protection to parents in these situations. If monies are removed from the bank, it may be argued that a trust had been created and the adult child breached their duties and the money should be returned. Yet, proving a trust would be difficult. Not many parents, prior to including a name on a bank account, will host a family meeting whereby an adult child is informed of the parent’s desire to establish a trust.
We do not proceed with such formalities in our family; instead, most adults only consider that they love their child and believe their child will have their best interests at heart. If a deed has been prepared transferring property, the burden of having the deed set aside is even more onerous.
To set aside a deed in our country, we must prove either fraud, undue influence, duress, mistake, incapacity, lack of consideration, non est factum or illegality. In most cases, parents voluntarily transfer property not considering that their children can take it back, so none of these avenues to set aside deeds become available to them.
Several countries around the world have considered protecting their elderly citizens and have enacted legislation for that purpose. In Japan, China and Singapore, the protection offered to elderly parents are stricter than in other countries. Their legislation allows parents to apply to the court for financial allowance or maintenance from adult children. It also establishes reporting systems to ensure that parents are not being the victim of financial abuse.
In 2007, India enacted legislation that allowed tribunals to declare transfers to children void if the said children refused to perform their caregiving duties after receiving the gift of property. India’s legislation also made provisions for financial assistance to be given to parents by their heirs. South Africa also has the benefit of an Older Persons Act which has criminalised financial abuse of the elderly.
We have recently considered legislation to protect our young adults by increasing the age for gambling, smoking and consumption of alcohol. Consideration should now be given to the protection of our elderly, with legislation specifically guarding their homes, land and finances.
It is easy for elderly persons, motivated by the belief of love and affection, to willingly transfer money and property to their children without keeping any form of life interest or protection for themselves. When parents finally realise that their best interests have never been considered, it is too late, and parents in the sunset of their lives suddenly endure hardship at the hands of their own children.
Pavitra Ramharack is Head of Chambers at Pavitra Ramharack Attorneys at Law and can be reached at ramharack_pavitra@outlook.com
