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The legal fallout when a carer becomes a partner

Carers are wonderful people who do important work, often for little or no reward. Here is another scenario where a carer can be found to be a lover. The case of Sun v Chapman decided whether a de facto partner was a carer or partner at the time of the deceased’s passing.

The reversal of an earlier ruling

Recently decided in the NSW Court of Appeal, the case of Sun v Chapman [2022] NSWCA 132, follows an earlier judgment (Sun v Chapman [2021] NSWSC 955) that found that Ms Sun was the live-in carer of the deceased, Mr Robin Chapman, and not his de facto partner. The recent decision heard that the couple began living together in 1998, and although an earlier decision found that they had ceased a de facto relationship, the Court of Appeal disagreed.

Mr Chapman and Ms Sun lived together from 1998 until Mr Chapman’s death on 2 February 2019. Mr Chapman’s last will was made in 1996 which pre-dated the relationship and as such made no provision for Ms Sun.

The Court of Appeal reviewed the “evidence of the existence, nature and quality of [the] relationship”. Although Ms Sun was caring for the late Mr Chapman and they often fought, this did not negate the fact that they remained in a de facto relationship and there was no evidence brought to the contrary. It is harder to prove something is not the case.

Medical notes and police records demonstrated that the deceased had a dementing condition. These notes also refer to the deceased and Ms Sun in a de facto relationship and not as a carer-patient relationship. Although the Court heard that the adult children of the deceased did not see their father and Ms Sun engage in behaviour that indicated a de facto relationship, the Court decided this was not unsurprising that the deceased did not disclose the relationship to his adult children.

Ms Sun, however, demonstrated in a number of ways that she was in a de facto relationship with the deceased by showing photos of holidays together, as well as corroborative evidence from a friend, a neighbour and her son that was consistent with Ms Sun and the deceased being in a relationship together. In addition, the deceased made a statutory declaration on 10 June 2003 to support Ms Sun’s application for a permanent residency visa and stated they were in an “ongoing de facto relationship.”

Relevant to the case, the Court of Appeal makes note of how the legislation defines “de facto relationship,” “close personal relationship,” and “eligible persons” who can make an application for a family provision order with regards to the estate of a deceased person.

The Court of Appeal stated that Ms Sun and Mr Chapman were in a de facto partnership rather than a carer-patient relationship even though the romance had ended, in much the same way a “wife might continue to look after a demented and grumpy husband.”

Get advice in advance

Society expects partners to do some caring. Hopefully they do care! But carers who become romantic partners cross a line.

Advice in advance could have achieved a different result. I have personal experience with this. I prepared an agreement for someone in our family to ensure they received a fair hourly rate for offering care services but no more. They were contractually obliged to advise the family if any offer of a legacy or other support was made by the family member who had dementia. It worked.

Imagine how the family of the deceased feel in this case, having embarrassing evidence revealed so publicly? I comfort myself that, while these articles go viral, our audience are discreet and sensitive people.

Legacy is more than just money; it is how you are remembered. It is worth protecting.

 

Thank you,Veronica Peters, psychologist for her help with this article.

Donal Griffin is the Principal of Legacy Law, a Sydney-based legal firm specialising in protecting family assets, and author of 'An Irish book of living and dying' (the first book in the 'Be A Better Ancestor' series). Legacy Law is not licensed to give financial advice and this is general information.

 

6 Comments
Bill Brown
December 18, 2022

A bit of smart planning by the family of the deceased might have thought it a good idea to pay the carer a salary, complete with board and lodging, to establish an employee-employer relationship, thus protecting the estate!

Anyone care to comment?

Sonja
December 19, 2022

This is the family who had no contact with their father and did not know of the existence of a 21 year long relationship! A relationship that endured through old age and dementia. A better course of action would have been for the relationship to have been officially registered and the will updated, thus protecting the estate from embarrassing litigation brought on by the adult children.

Jason
December 23, 2022

Pretty convenient for the family to have a live in carer for their dad for many years and not having to pay them. Do you know how much that arrangement can cost and how much work it relieved the family of?

I guess it was foolish of the carer to make a presumption that they will be looked after at the end of it.

Michael2
December 31, 2022

I also look at what the children were doing while someone else looked after their father, while they didn’t even take the time to visit.

Were the children in good jobs adding considerably to their wealth, while the carer presumably had their work options curtailed as to care with someone with dementia is very hard work

Edith Miller
December 17, 2022

Very informative, thank you, Donal.

Donal Griffin
December 20, 2022

You are welcome, thank you Edith.

 

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