Thu | Sep 20, 2018

Laws of Eve | Legal obligation to support the elderly

Published:Monday | September 3, 2018 | 12:00 AMSherry Ann McGregor

Pearl Buck wrote: "Our society must make it right and possible for old people not to fear the young or be deserted by them, for the test of a civilisation is the way that it cares for its helpless members." Is that the society in which we live? From all accounts, that answer is "no", but many would argue that the comment is equally true of the young and just about any vulnerable member of our society.

Many elderly persons did not work in jobs that allow them to enjoy a pension today, and the sophisticated idea that they had sizable investments to take them into their twilight years is even less likely. For those among them who managed to save and retire with a sizable nest egg, their savings can easily disappear after one devastating illness.

The fact is that most of us grew up in a society where it was expected that we would one day take on the responsibility to care for our parents. However, there are many times when the breakdown in the family unit results in adult children neglecting their elderly parents who are in need, and those elderly persons, if they are not fortunate to live in a community where neighbours help each other, are left to depend on the kindness of strangers, civil-society groups or the Government.

It is not in all cases that the adult children are to blame for lack of support to their parents, because they often do not have the means to assist. It is also true that some elderly persons in need of care had not fulfilled their obligation to care for their children when they were minors and they now feel no sense of duty to provide for them.

If we set aside those cases, and focus on the instances in which the adult children, who enjoyed the support of their parents, can now afford to make financial provision for them, I recently learnt that many persons do not know that there is provision in law for them to do so.

 

Maintenance Act

 

Section 10 of the Maintenance Act states:

"10.-(1) Every person who is not a minor has an obligation, to the extent that the person is capable of doing so, to maintain the person's parents and grandparents who are in need of such maintenance by reason of age, physical or mental infirmity or disability.

(2) In considering the circumstances of a dependant who is a parent or grandparent, the court shall have regard to whether, by reason of age or infirmity, that dependant is unable to provide for himself or herself.

(3) The obligation of a person under subsection (1) in respect of that person's grandparent only arises in the event of the failure of the grandparent's children to do so owing to death, physical or mental infirmity or disability."

The elderly or ill parents or grandparents of an adult, who is capable of making financial provision for them, are entitled to file applications in the Family or Parish Courts to seek maintenance orders in their favour. While the primary responsibility falls on the children, if the children are themselves deceased or ill, the grandchildren will have the obligation to provide for their grandparents.

It is accepted that the expense and effort of pursuing court actions may be overwhelming to most elderly persons and, regrettably, legal actions such as these are not financed by the public purse; but the first step is knowing that the option to file a claim exists. The claims themselves are simple, so they can be pursued without the help of lawyers, because the clerks of the court will provide guidance. Moreover, some attorneys may be willing to assist for free.

What is most important is for our society to reawaken the desire to care for the vulnerable persons around us, and this needs to start in our own homes.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.