When aged care comes between couples
By 2022 Australia will be home to 4 million people in the 65 – 84 age bracket. The impacts on our health care and aged care systems are quickly becoming apparent, but an ageing population will also change some aspects of family.
Increasingly, one person in a marriage or partnership is being admitted to an aged care facility to help cater for their health needs, while the other person remains in the marital home. Or in some cases, couples are being forced to reside in separate aged care facilities.
What happens if one party’s financial needs are now different from the other, and can a couple be considered “separated” even if it’s involuntary?
In short, yes. The Family Court has the power to make property settlement orders if the parties aren’t divorced. This can become particularly complicated if it’s a second marriage, and the adult children from the previous marriages become involved.
A judge can also determine it is “just and equitable” to make settlement orders in circumstances where the parties were involuntarily separated by reason of their age and ill-health, and have been forced to reside in separate aged care facilities.
Those settlement orders can be made for the couple’s wellbeing only and not for any potential beneficiaries of their estate.
In some circumstances, an application for spousal maintenance can be made.
A spouse may be able to make an application to the Family Court for spousal maintenance to be paid to them, in order to meet the costs of their care, even if the relationship is intact, but the couple are physically separated.
Dementia and other issues of mental decline can further complicate matters.
If one person is unable to apply for court orders, a family member may do this on their behalf.
Sadly in some cases, the elderly person simply no longer has the mental capacity to understand the decisions being made on their behalf by their adult children. In that case, an adult child or other family member can have control over the assets through an Enduring Power of Attorney.
Issues relating to aged care, mental capacity and property settlements are complicated ones. They’re also extremely personal. At Michael Lynch Family Lawyers we know how to take care of these often distressing issues. Please contact us today for a consultation on (07) 3221 4300.
