There are some clients who are always open-minded and willing to listen to the pros and cons of their cases or even to reconsider an approach which they were once very willing to adopt. One of the most difficult group of people to advise is elderly people. Not necessarily because they are older and more settled in their ways, but because they believe that just as they love their children unconditionally, their children in return love them unconditionally.
Elderly parents look at their adult children, most times through rose-tinted glasses. There are some who easily see through their children’s intentions or behaviours, but sadly, these are the exception to the general rule. Elderly parents sometimes forget, as well, that in considering what their children would or would not do, they must also consider the outside influence of in-laws, friends or other motivational factors in the children’s lives.
I have always encouraged people, both young and old, to consider estate planning. Prepare wills, make last wishes known –consider the distribution of assets. But, what I have always tried to advise was that in doing this, consider self-protection as well. There are many elderly people who are open to considering estate planning or even the transferring of property and monies, but what they fail to consider is self-protection for the remainder of their lives.
In refusing to take my advice for self-protection, I have heard the same excuses from elderly persons from all different walks of life. My favourite ones usually are as follows:
You don’t know my children. Them is good children, they doing real good and don’t want anything from me;
My child living in America, he don’t want nothing to do with Trinidad, he not coming here to fight me for nothing; and
Everything I want my children does give me and do for me, nobody aren’t taking no advantage of me.
I have heard them in all forms and fashions. Then I have had to listen to parents who added their child’s name to their joint accounts.
The accounts are usually ones which accumulated their life savings to take care of them in ill-health, or their retirement and gratuity benefits. Only to have their child withdraw lump-sum amounts or remove the bulk of the money to invest in a vehicle, or property, or pay debts, leaving elderly parents in absolute turmoil. I have even had parents who willingly and happily included their child’s name on their deed for the property in which they are living, only to have some form of tension enter the home and legal action to have the parents removed, or the child claiming a larger interest due to investment for repairs and renovations. These are scenarios that result in turmoil, stress and financial ruin in the twilight years of your life.
In the usual course of things, once the bank places a name on an account, making it a joint account, both parties can withdraw monies and/or are both entitled to the benefit of the account. Several years ago, there would have been little or no recourse to recoup monies that a child would have withdrawn.
The court, through several judgments, is reconsidering this approach. If the court finds that there was a common intention between parent and child that the account was the parent’s account, with the child’s name being placed there as a safety mechanism, then an order can be made that the monies are not to be shared jointly but belong to the parent.
The danger with this approach is that not all parents have these discussions or make their intentions clear. Most times, the names are simply included, almost like a rite of passage, which will not satisfy the court of any common intention.
It means, therefore, that to protect elderly persons from losing their homes and monies due to the actions of their children, some form of legislation must be considered.
Our country is not alone when it comes to taking advantage of the assets of elderly persons.
India recognised this concern several years ago and established the Maintenance and Welfare of Parents and Senior Citizens Act 2007. This act included several important factors which would benefit T&T. It required children and/or heirs to legally provide maintenance and/or care to elderly parents or seniors.
Aside from care, it allowed elderly persons to transfer their property on the promise of being cared for. If that care was broken, the property transfer would be reversed.
China, in the past 15 years or so, has adopted, amended and passed several pieces of legislation to ensure that their elderly population was being cared for, protected from abuse and requiring visitation and maintenance from adult children.
Similarly, China has the benefit of legislation protecting property and assets from children. Earlier this year, a lawmaker in the Philippines proposed measures to introduce similar legislation for the protection of the elderly.
There are countless instances of elderly abuse and/or duress and/or undue influence which occur in our country. There are so many elderly persons who are pressured into transferring property and assets to their children and then forced into a little corner of their own property or even placed in homes with little visitors or family interaction.
There are also elderly persons who are made to sign deeds transferring property or even wills without realising what they have done. There are elderly persons who share their home with their married children and are ill-treated but are too afraid to speak up.
There are a handful that are brave enough to file for protection orders, refuse to transfer their properties and who opt to disinherit their children. But, the majority continue to view children through rose-tinted glasses until those glasses are forcefully ripped off.
It is time that we consider legislative means of protecting our elderly.
Pavitra Ramharack is head of chambers at Pavitra Ramharack Attorneys at Law and can be reached at ramharack_pavitra@outlook.com
