IDENTIFYING VULNERABILITY: THE ARGUMENT FOR LAW REFORM FOR FAILED FAMILY ACCOMMODATION ARRANGEMENTS.

• Date: 01 January 2019
• Author: Somes, Teresa
• Published date: 01 January 2019
• Author: Somes, Teresa

The identification of a social problem as a legal need rather than as some other sort of problem altogether is dependent on the place that law occupies in the society concerned, and especially the extent to which legalism permeates social consciousness. To identify a problem as a legal need is to make a particular judgement about appropriate solutions to that problem and then to recast the conception of the problem to accord with the nature of the proposed solution. (1) I INTRODUCTION

The demand for housing and care for older people is one consequence of Australia's ageing population. (3) As such, arrangements between parents and their adult children, whereby accommodation and often care for parents is provided in exchange for a financial or proprietary benefit, have become increasingly popular in recent years. (4) While the specific terms of the arrangement will vary, they most commonly involve a parent selling their property and building a 'granny flat' or extension on the adult child's property, paying off or contributing to a child's mortgage, or transferring real property to the adult child in exchange for accommodation, and oftentimes, care for the parent.

When carried out successfully, the parties can enjoy the reciprocal social and financial benefits the arrangement brings, as well as the societal advantages gained by reducing the demand for state provided aged care. Yet, like most agreements, the arrangement becomes 'problematic' when obligations agreed upon are unfulfilled. The scope of the problem is exacerbated by it occurring within a family context. As the quotation by O'Malley (above) suggests, a social or political problem can be characterised as a legal problem, only if one accepts the law has a role in resolving the particular problem. (5) While strategies can be adopted to educate parties concerning the pitfalls of entering such arrangements, or to anticipate and provide for distribution of property should the arrangement continue, (6) inevitably people will enter such arrangements without planning for a range of contingencies. (7) Unsuccessful accommodation arrangements between families can be theorised as a social and political problem, but when the accommodation arrangement has broken down and the avenues for non-legal dispute resolution have been exhausted, the issue takes on a legal dimension. (8) The nature of Australian property law requires a court to either adjust proprietary interests or, if appropriate, order a monetary sum. (9) Yet people faced with this dilemma too often eschew any legal action owing to the combination of personal circumstances (10) and the inaccessibility of the legal system.

The analysis engages with vulnerability theory and, in particular, the tripartite theory of vulnerability conceived by Rogers, Mackenzie and Dodds. (11) Vulnerability theory recognises that, as human beings, we all experience vulnerability at various stages of our lives, and being vulnerable is a fundamental characteristic of human experience. (12) The approach taken by Rogers et al develops the theory as suggested by Fineman, and enables the position of the parent/donor to be analysed from the perspective of their inherent, situational and pathogenic (or structural/systemic) vulnerabilities and the manner in which these impact one another. By applying this theoretical framework in the context of family accommodation arrangements, it can be shown that factors which contribute to the parent/donor experiencing situational vulnerability can be exacerbated by any inherent vulnerability, but it is the institutional responses to those vulnerabilities that are deeply flawed. It is this pathogenic vulnerability caused by the shortfalls in legal structures where the opportunity for state intervention and law reform lies.

Part II of this paper will explore the participants in family accommodation arrangements and explain why the analysis specifically focusses on the vulnerabilities experienced by an older person. It critiques why the 'elder abuse' paradigm is not the appropriate framework for analysis and explains why vulnerability theory offers a more appropriate framework for isolating the need for law reform. Part III introduces Fineman's vulnerability theory and its relevance to access to justice concerns. It further explains how the theory has been refined by Rogers, Mackenzie and Dodds. Part IV applies this refined theory to family accommodation arrangements and identifies the scope of vulnerability experienced by the parent/donor.

II IS ELDER ABUSE THE RIGHT FRAMEWORK FOR FAMILY ACCOMMODATION ARRANGEMENTS?

This part identifies the participants in the family accommodation agreement and concludes that owing to the relationship of trust that characterises the arrangements they are most commonly undertaken between a parent and their adult child. However, despite the precarious legal position of the parent/donor in the event of failure of the arrangement, characterising the situation as one of elder financial abuse is of limited value when assessing the need for law reform.

1. Family Accommodation Agreements and the 'Elderly'

   An asset for care arrangement could conceivably be entered into between any two parties, irrespective of their age or familial relationship, provided one person was willing to exchange assets or property for the promise of care. However, it is the undertaking of the agreement in the context of a relationship that is characterised by intimacy and personal trust that generates many of the problems associated with these arrangements. This explains why the discussion in this article is premised on the parent/child relationship as the dominant paradigm. Data provided by the Australian Bureau of Statistics reveals that older people are ten times more likely to be living with a child or family member than a non-family member. (13) In addition, case studies and interviews conducted by organisations such as the Council of the Ageing (COTA) (WA), (14) Northern Suburbs Community Legal Centre (WA), (15) and Seniors Rights Victoria, (16) as well as anecdotal support from the legal profession, (17) corroborate the view that the vast majority of asset for care arrangements occur between a parent and their adult child. The transfer of property or assets within a relationship of trust, or where there is an expectation of trust places the parent /donor in a vulnerable legal position. (18) Owing to a belief in the integrity of the relationship, parent/donors fail to consider outcomes should the arrangement fail, nor do they take precautions to protect their financial or proprietorial interests. (19) It is more likely that an arrangement with a person not coming within the definition of family or close personal relationship would be subject to more scrutiny and formality than those made with a family member.

   Even assuming that family accommodation agreements are predominately undertaken between parents and their adult children, there is no requirement that the donor be 'elderly'--a parent could conceivably be in their forties. The analysis undertaken in this article therefore does not target a group because they are 'elderly'; that is, there is no prerequisite that the donor falls within a certain age range. The observations of MacKenzie are pertinent here, when she says:

   Interventions that target specific groups identified as vulnerable and subject them to restrictions or forms of surveillance not applied to the rest of the community, that treat persons who are so targeted as incompetent ... and that are primarily focussed on reducing perceived risks to society rather than concerned with fostering autonomy count as objectionably paternalistic. (20) However, one must acknowledge that the combination of factors that motivate people to enter these arrangements are closely linked to the age and associated circumstances of the donor party. For instance, inherent vulnerabilities such as cognitive impairment and physical frailty may arise in elderly people resulting in increased dependence and reliance on others. As such, some of the problems identified concerning access to the legal system are analysed with reference to the advancing age of the donor.

   Despite the parent/adult child relationship being the normative one, not all accommodation arrangements are necessarily entered into with adult children. In some cases, such arrangements can be made with other family members, friends, carers or even acquaintances. This was addressed specifically in the Australian Law Reform Commission's Final Report. (21) The Commission considered the breadth of the definition of family and family-type relationships, where the core elements of the relationship involve the qualities of trust that characterise relationships between family members. (22) It is the degree of trust inherent in the relationship that inhibits people from protecting their legal position. Therefore the 'family type' relationship could extend to individuals should that association become close and characterized by trust over time. The Commission proposed that a broader definition of 'family' as defined in the Family Violence Protection Act 2008 (Vic), s 8 should be used as a template. The section is set out below:

   Meaning of family member

   S 8 (1) For the purposes of this Act, a "family member", in relation to a person (a "relevant person"), means--

   (a) a person who is, or has been, the relevant person's spouse or domestic partner; or

   (b) a person who has, or has had, an intimate personal relationship with the relevant person; or

   (c) a person who is, or has been, a relative of the relevant person; or

   (d) a child who normally or regularly resides with the relevant person or has previously resided with the relevant person on a normal or regular basis; or

   (e) a child of a person who has, or has had, an intimate personal relationship with the relevant person.

   (2) For the purposes of subsections (1)(b) and (1)(e), a relationship may be...