When things go wrong

Summary

A family agreement that involves shared living arrangements or financial contributions for care usually comes about because everyone involved is confident it will work out. Unfortunately, sometimes it does not—and then the older person needs to look at what options are available to resolve the dispute and, often, find a new place to live.

It does not always matter whose fault it is that the agreement has not worked out—it may not even be anybody’s fault. The challenge is that it is usually the older person who is left in the more precarious position—they have often given up their own home, and a significant amount of their assets, for the promise of ongoing accommodation and care. They also have fewer options for mitigating their losses, as they are usually no longer working (so may have a low or limited income) and may have other age-related difficulties that limit their independence.

If the family member is unwilling or unable to return the financial contribution, the older person may be at risk of homelessness. Even if the older person is able to recoup some of the money they put into the arrangements made with their family, it may not be enough to set them up in a new life.

The main options for resolving a family agreement breakdown are:

direct discussion, to see if a resolution can be found
alternative dispute resolution, or
civil litigation.

Options available to resolve a family agreement breakdown

There are some options available for resolving a dispute over family living arrangements. But all parties should be aware before they enter into the arrangements that these options can be lengthy, costly and stressful. The result does not always work out in the older person’s favour, and even when it does, the amount recouped may not be sufficient for the older person’s needs, particularly when the property market in Australia is highly competitive.

Because there is no distinct legislation or decision-making body to mediate family agreements, a combination of different areas of law applies. In most states and territories, this might mean making an application to the courts (in Victoria, to the Victorian Civil and Administrative Tribunal). A legal service or lawyer will be able to advise on the best course of action.

Coming to a new agreement through discussion

In some situations, it may be possible for the parties to the family agreement to change or end the arrangements in a way that is satisfactory to everyone. This is more likely when the agreement has ended due to external factors—for example, the older person might now need more care than can be provided, or the family member who owns the property may go through a relationship separation and need to sell the property.

A good, written family agreement drafted by a lawyer will have considered the possibility of the arrangements ending and should offer guidance for what each person should walk away with. Even when there is no agreement in place, if everyone is willing to discuss and negotiate, it may be possible to resolve the issue without needing a more formal process.

But where the relationship between the two parties has broken down; where there is conflict, family violence, threats or fear; or where one party refuses to engage, it may be necessary to look at more formal options for resolution.

Alternative dispute resolution

Alternative dispute resolution (often called ‘ADR’) offers another way of settling disputes other than traditional court proceedings. It is less expensive than going to court and usually provides a quicker resolution. Alternative dispute resolution may also help preserve the relationship between the older person and their family member, particularly as the outcome is one agreed to rather than forced upon the parties by the courts.

There are various forms of alternative dispute resolution, including negotiation, mediation and court- or tribunal-directed dispute resolution. All forms are facilitated by an independent or neutral professional who leads the discussion and tries to move it towards a resolution.

Negotiation

Mediation

Court- or tribunal-directed alternative dispute resolution

Legal options

The main redress for family agreements that have gone wrong is through civil litigation: seeking an order through the courts or, in Victoria, a tribunal. Unfortunately, this can be very costly, take a long time, have outcomes that are unsatisfactory, and be very stressful. Because of this, litigation can exacerbate family breakdowns and may lead to a loss of family relationships. But in some instances, it is the only way to move forward.

There are different avenues of legal redress that the older person can use to attempt to recoup the financial contribution they have made or assert an interest in the property. Each comes with some complexity and will depend on the context of the individual agreement. Options available will be different depending on what the agreement encompassed (property, loans, financial contributions) and whether there was written documentation of what was agreed.

Most people who wish to seek legal redress may need to be prepared to pay the costs. In some circumstances the older person may qualify for publicly funded legal assistance from Legal Aid.

Family agreements involving property

If the older person is named on the property title, any legal negotiations will stem from the clear understanding that the older person has a legal interest in the property. Depending on the contributions and initial agreement, lawyers for the two parties may be able to negotiate a settlement that takes into consideration the amount or proportion that the older person contributed.

Most commonly in family agreements, the older person has no legal title, so they will need to look at ways of asserting their claim over the property. This might mean showing they have an equitable interest, where they have made a financial contribution and fairness dictates they have an interest in the property. As well as showing that the contribution was not a gift, the older person will also be required to prove that there was an intention by both parties to be legally bound by the agreement.

There are various equitable actions or remedies that may be used to assert the older person’s interest. It might be established that the family member and the older person had formed a common intention on how the property will be shared, and that because of this, even if the older person is not on title, they are deemed to have an interest in the property.

Equitable estoppel

Estoppel is a way for the courts to prevent a person going back on their word. In relation to family agreements, it can be used to compensate the older person for the loss associated with the breakdown in the agreement.

For this remedy the older person must show that the family member gave them the impression that they would gain an interest in the property—for example, that they would be able to live there for the rest of their life—and that this impression led the older person to make a financial contribution.

If these arrangements break down and the older person can no longer assert their interest by living in the property, the situation is to their detriment. An equitable estoppel action can compensate, essentially by stopping the family member from claiming that the financial contribution of the older person was simply a gift and unrelated to future promises of care.

Presumption of advancement

One of the added difficulties is the legal principle known as the ‘presumption of advancement’, which presumes that any financial contribution made by a parent to their child is to be seen as a gift (and not affording them a legal or equitable interest) unless it can be proven otherwise.

This principle can operate for any transaction made from the older person to their child, where it is assumed the transaction was a gift unless the older person can prove otherwise. A promise of care, particularly a verbal promise, is often not enough to rebut this presumption.

Unconscionable conduct or undue influence

An older person can try to recover property or assets by asserting unconscionable conduct (where the family member has set out to deceive or take advantage of the older person and not provided their part of the agreement) or undue influence (where the older person has been pressured into the agreement, has not benefited from it, and was dependent on the family member when the agreement was made).

However, both these options only apply in very specific circumstances and not when the older person has freely entered the agreement and later become disenchanted.

Caveat

A caveat is a legal document that claims an interest in a property. When one is lodged it notifies the title owner, and any potential purchasers or financial institutions, that someone who is not listed on the title is claiming an interest in the property. For example, if an older person made a financial contribution to the purchase or renovation of a property with their adult child but was not on title, their lawyer could lodge a caveat to assert their interest. The caveat would remain in place until the matter is resolved and the older person withdraws it.

A caveat can encourage the family member to resolve the issue, because they will not be able to refinance or sell their property until the caveat is withdrawn.

Loans

Family law proceedings

Things an older person can do

Call an elder abuse or advocacy helpline to discuss your situation

Everyone’s situation is different and complex. For this reason, it is important to get information and advice that is specific to the individual situation.

For older people who are part of a family agreement that has ended or is likely to end, a good way to start to understand their options is to call an elder abuse or older person’s advocacy helpline.

The helpline will be staffed by people familiar with family agreements and family conflict. They can give advice about what to do if the person feels unsafe in their home, family members are refusing to move out, or the person needs to find alternative accommodation.

Think about what the older person wants or needs

When an older person enters into a family agreement, they usually assume it will last forever.

They may not have given much thought to alternative living and care arrangements. But if things have not worked out, they may need to consider some alternatives.

Recouping their financial contributions may not be possible, or doing so might put the family in a precarious position. Once they take steps to resolve the dispute, they will need to be able to give instructions to a lawyer or put forward their views in a mediation conference.

After receiving information about their situation, the older person should take some time to think about the outcomes they would like and what other steps they may need to take. This might include seeing a financial counsellor to understand their financial situation or looking at aged care options if some assistance with daily tasks is needed.

Get advice from a lawyer

Almost all options to resolve the dispute will be based in civil litigation and it will be necessary for the older person to find a lawyer to inform them of the options and act on their behalf. If the person doesn’t have a lawyer, there are various ways of finding one.

Elder abuse helpline

Call 1800 ELDERHelp (1800 353 374) to be put through to the elder abuse helpline in the relevant state or territory. The helpline will be able advise where to get legal advice.

Legal advice helpline

Legal Aid in each state or territory runs a legal advice helpline. This helpline will be able to offer advice and direction on next steps. They may advise the caller that they need to find a private lawyer, that they should contact a community legal centre, or that they may be eligible for legal aid.

Legal Aid

In some instances, the relevant state or territory Legal Aid service may be able to pay for a lawyer to help. This is called ‘providing a grant of legal assistance’.

Generally, public funding for legal assistance is limited to family law (that is, matters that come under the Family Law Act 1975, such as separation and custody arrangements) and criminal law. This means that family agreements and property disputes do not generally fall into the types of legal matter for which there is public funding. However, sometimes where there are particular vulnerabilities, circumstances or family violence (including elder abuse) or where the property is a primary place of residence (as opposed to an investment), public funding may be available.

As funding is limited and demand for legal services is high, there are strict eligibility criteria, including a merit test (regarding the type of legal problem the person has) and a means test (regarding their ability to fund their own lawyer).

People who own, or have significant equity in, their home may not be able to access publicly funded legal aid because of the assets component of the means test and the high demand on these services. There is some discretion available to relax this test for older people whose assets are in the property which is being disputed and where elder abuse has been experienced.

To find out if their legal problem qualifies, the person will need to contact the Legal Aid service in their state.

ACT: Older Persons ACT Legal Service, Legal Aid ACT
South Australia: Legal Services Commission of South Australia
NSW: Legal Aid NSW
NT: Northern Territory Legal Aid Commission
Queensland: Legal Aid Queensland
Tasmania: Tasmania Legal Aid
Victoria: Victoria Legal Aid
WA: Legal Aid WA

Community legal centre

A community legal centre is an organisation that provides free legal services to the public and advocates for public and social policy change. Community legal centres are able to help people who cannot afford a private lawyer and are ineligible for legal aid. They focus on helping people who are experiencing economic and social disadvantage that places them in a vulnerable position.

Private lawyer

The website of each state’s Law Society or Bar Association can help people find a lawyer in the local area.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.

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