Register For Our Mailing List

Register to receive our free weekly newsletter including editorials.

Home / 488

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.

 

Leave a Comment:

     

RELATED ARTICLES

Thou shalt not covet … thy neighbour’s house

Take care when assisting parents financially

The gentle art of death cleaning

banner

Most viewed in recent weeks

The nuts and bolts of family trusts

There are well over 800,000 family trusts in Australia, controlling more than $3 trillion of assets. Here's a guide on whether a family trust may have a place in your individual investment strategy.

Welcome to Firstlinks Edition 581 with weekend update

A recent industry event made me realise that a 30 year old investing trend could still have serious legs. Could it eventually pose a threat to two of Australia's biggest companies?

  • 10 October 2024

Welcome to Firstlinks Edition 583 with weekend update

Investing guru Howard Marks says he had two epiphanies while visiting Australia recently: the two major asset classes aren’t what you think they are, and one key decision matters above all else when building portfolios.

  • 24 October 2024

Preserving wealth through generations is hard

How have so many wealthy families through history managed to squander their fortunes? This looks at the lessons from these families and offers several solutions to making and keeping money over the long-term.

A big win for bank customers against scammers

A recent ruling from The Australian Financial Complaints Authority may herald a new era for financial scams. For the first time, a bank is being forced to reimburse a customer for the amount they were scammed.

The quirks of retirement planning with an age gap

A big age gap can make it harder to find a solution that works for both partners – financially and otherwise. Having a frank conversation about the future, and having it as early as possible, is essential.

Latest Updates

Planning

What will be your legacy?

As we get older, many of us start to think about how we’ll be remembered by those left behind. This looks at why that may not be the best strategy to ensure that you live life well and leave loved ones in good stead.

Economy

It's the cost of government, stupid

Australia's bloated government sector is every bit as responsible for our economic worries as the cost of living crisis. Grand schemes like the 'Future Made in Australia' only look set to make it worse.

SMSF strategies

A guide to valuing SMSF assets correctly

SMSF trustees are required to value all fund assets, including property, at market value when preparing the fund's financial statements each year. Here are some key tips to ensure that you get it right.

Economics

Australia is lucky the British were the first 'intruders'

British colonisation's Common Law system contributed to economic prosperity, in contrast to Latin America's lower wealth under Civil Law. It influenced capitalism's success in former British colonies, like Australia.

Economics

A significant shift in the jobs market

The expansion of the 'care sector' represents the most profound structural change to Australia's job market since the mining boom. This analyses how it's come about and the impact it will have on the economy.

Shares

Searching for value in tech stocks

Just because a stock is cheap doesn't necessarily make it good value. This uses case studies in the tech sector to help identify when stocks trading on 30x earnings may be inexpensive and when others on 10x may be value traps.

Investing

Are more informed investors prone to making poorer decisions?

Finance Professor Michael Finke recently discussed the double-edged sword of taking an interest in your investments, three predictors of panic selling, and why nurses tend to be better investors than doctors.

Sponsors

Alliances

© 2024 Morningstar, Inc. All rights reserved.

Disclaimer
The data, research and opinions provided here are for information purposes; are not an offer to buy or sell a security; and are not warranted to be correct, complete or accurate. Morningstar, its affiliates, and third-party content providers are not responsible for any investment decisions, damages or losses resulting from, or related to, the data and analyses or their use. To the extent any content is general advice, it has been prepared for clients of Morningstar Australasia Pty Ltd (ABN: 95 090 665 544, AFSL: 240892), without reference to your financial objectives, situation or needs. For more information refer to our Financial Services Guide. You should consider the advice in light of these matters and if applicable, the relevant Product Disclosure Statement before making any decision to invest. Past performance does not necessarily indicate a financial product’s future performance. To obtain advice tailored to your situation, contact a professional financial adviser. Articles are current as at date of publication.
This website contains information and opinions provided by third parties. Inclusion of this information does not necessarily represent Morningstar’s positions, strategies or opinions and should not be considered an endorsement by Morningstar.