Caring for an elderly parent can be one of the most meaningful things you do for your family.
But when caring responsibilities increase, finances become complicated or a loved one loses mental capacity, even close family relationships can come under considerable strain.
A recent High Court case has highlighted just how serious these disputes can become . Bern Rogers was awarded £127,500 from her late mother's estate after providing extensive care for her mother, who had dementia. The prolonged dispute and legal battle with her siblings rumbled on for years and included criminal proceedings before the civil courts determined that she was entitled to payment under an informal agreement with her mother. The estate has indicated that it intends to appeal against the amount awarded.
We know first-hand that every family's circumstances are different, but the case raises an important question: could clearer communication and appropriate legal planning help families avoid similar disputes?
Whilst no amount of planning can guarantee that disagreements will never arise, there are practical steps you can take to help protect an elderly relative, clarify family responsibilities and reduce the risk of costly legal battles.Which is why we're out together the following short 7-point guide.
How to protect your loved one and avoid conflict
1. Discuss care arrangements before misunderstandings arise
When an elderly parent begins to need more support, it’s really common for family members to step in to help without giving much thought to the longer-term implications.
One sibling might provide daily care, another might contribute financially, while others may live further away and take on fewer responsibilities. Everyone may initially agree that the arrangements are fair, but expectations can change as care needs increase.
For example, what happens if the main carer has to reduce their working hours or give up their job? Should they receive payment for their time, or simply have their expenses reimbursed? What does the parent want, and what can they realistically afford?
These conversations can feel uncomfortable, particularly when money is involved. But, discussing expectations openly at an early stage really can help prevent resentment and misunderstandings later. No matter how much we’d like to think we won’t fall out over these things, people can and do lock horns over such issues and it can often turn ugly.
Where payment for care is intended, consider obtaining independent legal advice and recording the arrangement in writing. Clarify what care will be provided, how payment will be calculated, how it will be funded and what happens if circumstances change.
An informal understanding can sometimes have legal consequences, but relying on memories of conversations years later can create significant difficulties.
2. Put a care agreement in writing
A written agreement can help establish what everyone understood and agreed when the care arrangement began.
Depending on the circumstances, it might cover the responsibilities of the family carer, payment arrangements, reimbursement of expenses, the expected level of care and how either party can review or end the arrangement.
It is also sensible to keep clear records of payments, expenses and any changes to the agreement.
Importantly, any arrangement must reflect the older person's wishes, circumstances and ability to make the relevant decisions. It should not simply be agreed between relatives without properly considering the person's own interests.
A solicitor can advise on whether a formal agreement is appropriate and how it should be structured. This may be particularly important where substantial sums of money are involved or the arrangement could affect the person's future finances or estate.
3. Make a Lasting Power of Attorney while your loved one has mental capacity
One of the most important steps in planning for later life is making a Lasting Power of Attorney (LPA).
An LPA allows someone to appoint trusted people, known as attorneys, to make certain decisions on their behalf if needed. There are two types:
- Property and Financial Affairs LPA: covers matters such as managing bank accounts, paying bills and dealing with property and finances, within the authority granted.
- Health and Welfare LPA: covers relevant decisions about healthcare, daily care and living arrangements when the person is unable to make those decisions themselves.
An LPA must be made while the person has the mental capacity required to understand and make that decision. It must also be registered before it can be used.
Choosing attorneys carefully is important. Consider whether they can act responsibly, communicate with other family members and manage potential disagreements. Where appropriate, professional advice can help you understand how attorneys can be appointed to act together or independently.
An attorney must act in the person's best interests and follow the legal rules governing their role. An LPA does not give someone unrestricted access to another person's money or permission to use it for their own benefit.
Planning ahead can help ensure that someone has the appropriate legal authority to manage important affairs if capacity is lost.
4. Understand what happens if someone loses mental capacity without an LPA
What happens if a parent develops dementia or another condition affecting their mental capacity, but has not made an LPA?
Being someone's child or next of kin does not automatically give you authority to manage their finances or make every decision on their behalf.
Depending on the circumstances, a family member may need to apply to the Court of Protection to be appointed as a deputy, allowing them to make specified decisions for someone who lacks capacity.
The application process can take time and involve additional expense, reporting requirements and ongoing oversight. If relatives disagree about who should manage the person's affairs or what decisions should be made, matters can become more complicated.
The Court of Protection can make decisions about people who lack capacity and appoint deputies where appropriate. However, deputyship is not a substitute for every type of planning, and a deputy's authority is limited to the powers granted by the court.
This is why making an LPA while someone still has the necessary capacity can be so valuable. It allows them to choose who they would like to act for them, rather than leaving important decisions to circumstances that may be more difficult to manage.
5. Make a Will and keep it up to date
A Will records what someone wants to happen to their estate after their death and can appoint executors to administer it.
Without a valid Will, the rules of intestacy determine who inherits, which may not reflect the person's wishes. Even where a Will exists, disagreements can arise if family members have different expectations about inheritance or believe that promises were made during the person's lifetime.
A Will should be reviewed when circumstances change, such as following a marriage, separation, a significant change in finances or changes in family relationships.
It is also important to understand that a Will deals with the estate after death. It does not appoint someone to manage finances or make welfare decisions during the person's lifetime if they lose mental capacity. That is where appropriate LPAs and, in some circumstances, Court of Protection arrangements become relevant.
6. Consider trusts and wider estate planning
Trusts may be useful in certain circumstances, including where someone wants to provide for particular beneficiaries or place conditions around how assets are managed or distributed.
However, trusts are not suitable for everyone and can have significant legal, tax and financial implications. They should not be viewed as a guaranteed way to protect assets from care costs, inheritance claims or future disputes.
A solicitor can help you understand the available options and whether a trust forms part of an appropriate estate plan for your circumstances.
Taking advice early can help families make informed decisions, rather than trying to resolve complicated arrangements after a parent has lost capacity or died.
7. Keep clear records and address disagreements early
Even where families have made sensible plans, circumstances can change. Care needs may increase, financial pressures may arise or relatives may disagree about what is fair.
Keeping records of care arrangements, expenses, payments and important decisions can help establish what was agreed and why. Where someone is managing another person's money, it is particularly important to act within their legal authority and keep appropriate accounts.
If concerns arise, try to address them before positions become entrenched. Independent legal advice may help clarify responsibilities and identify options for resolving disagreements.
Where a family member believes they’re entitled to payment for care, they should seek advice rather than assume they can take money from the person's accounts or estate themselves. Even where an agreement is believed to exist, the legal position and appropriate process need to be considered carefully.
Planning ahead can help protect your family
When an elderly parent needs increasing care, legal paperwork may not feel like an immediate priority. But clear arrangements can help protect the person's wishes, establish who has authority to act and reduce the risk of misunderstandings between family members.
A suitable care agreement, an up-to-date Will, appropriate Lasting Powers of Attorney and wider estate planning can all play a role. None can guarantee that disputes will never occur, but addressing these matters early may help families avoid unnecessary uncertainty, expense and distress at an already difficult time.
At Susan Howarth & Co. Solicitors, our sensitive Private Client team advises on Wills, trusts, Lasting Powers of Attorney, Court of Protection matters, probate and estate administration.
If you’re caring for an elderly relative, or are concerned about what might happen if a loved one loses mental capacity, seeking advice now could help you plan for the future with greater confidence.
Contact our lovely team on 01606 48777 to discuss your circumstances, or a good starting point can be to pop along to one of our x3 FREE weekly drop-in legal clinics (no appointment necessary) – to find out more about our free legal advice, click here
This article is for general information only and does not constitute legal advice. For advice tailored to your circumstances, please seek professional legal guidance.
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