Many, if not most, families will need to discuss caring for an elderly parent at some stage. Age UK research from 2023 found that more than 3 million people in the UK were personally caring for an elderly parent, with that number projected to more than double in the future.
But the financial impact, specifically on what children may ultimately expect to inherit, is frequently not discussed.
Often one sibling is better placed that the others to care for a parent, whether due to their existing employment, family commitments or their housing situation. And it is not unusual for a parent to want to reward the sibling providing that care in some way, or for the caring sibling to expect some reward. That can create tensions when it comes to inheritance.
In a recent case, which His Honour Judge Paul Matthews described as 'a tragedy for all concerned', formerly close siblings found themselves on opposite sides in both criminal and civil proceedings concerning the cost of their mother's care.
Bernadette Rogers is the eldest of five siblings. She cared for her mother Shelia for nearly two and a half years before Shelia died, including bringing Shelia to live with her. Shelia is said to have insisted on numerous occasions that she 'did not want charity' and that Bernadette should be compensated for providing care. And there is evidence – in the form of text messages discussing how Shelia was to be cared for - that Bernadette's siblings agreed that Bernadette should receive some payment for the time Shelia spent with her. However, at no point before Shelia died was there any agreement, with Shelia or between the siblings, of the amount that Bernadette would receive.
Shelia's Will appointed her eldest son, Andrew, as executor and split the estate equally between all five siblings. Bernadette says that shortly before Shelia died she spoke to Andrew about the fact she had not been paid for caring for Shelia and Andrew said 'just take it. Not long after Shelia died, Bernadette, who had access to Shelia's accounts as Attorney, transferred £100,000 from Shelia's bank accounts to her own as payment for the care she provided. That, sadly, pit Bernadette against her siblings, who as beneficiaries of Shelia's estate saw that payment as excessive and reducing their shares of the estate.
There followed successful action by the fraud department of Shelia's bank to recover the sums Bernadette had transferred to her own account. The extent of the siblings' role in the bank's action is unclear, but it is clear that they were instrumental in the subsequent criminal prosecution against Bernadette for theft of the £100,000 (even though it had by then been recovered).
Ultimately Bernadette was acquitted of the criminal charges. She then commenced proceedings against Shelia's estate seeking £135,000, which was the sum Bernadette said she ought to have been paid for the care she provided to Shelia.
The court ordered that the case should be dealt with in two stages – the first dealing with the question of whether Bernadette was entitled to be paid, and the second dealing with how much she should be paid.
At stage one, Bernadette succeeded in establishing in court that she had a contractual agreement with Shelia. Even if there had not been a contract (if for example Bernadette had not been able to show that Shelia intended to pay for the care), the court said Bernadette would still be entitled to be paid because Shelia knew Bernadette expected to be paid for providing care and accepted the care on that basis. That meant Shelia's estate had been 'unjustly enriched' by the amount Shelia ought to have paid for her care.
The stage two question, of how much Bernadette should actually be paid, remains to be determined. There are a number of possible approaches to calculating the sum due to Bernadette:
- Is it compensation for the money she spent from her own resources housing and feeding her mother?
- Should there be an element of remuneration for her time spent looking after her mother? And if so what is the appropriate rate?
- Is it an amount equivalent to the cost of professional care?
- Or should it be linked to the amount she could have earned if her time was instead spent in other employment?
Hopefully the pause in proceedings may encourage the family to agree how much Bernadette should receive, if nothing else to save themselves the cost and distress of another trial. If that is not possible, stage two of Rogers v Wills may deliver a formula for calculating compensation for care provided by family members. But it seems more likely that the appropriate formula will depend on the facts of each case.
For now, what Rogers v Wills has given us is a demonstration of just how badly wrong things can go if the cost of care is not tackled head on during a parent's lifetime.
If the person being cared for has the necessary mental capacity then the terms should at least be agreed with them. But most families where there are siblings that may ultimately share the parent's estate will benefit from clear communication about what to expect in advance of their parent's death and the heightened emotions that follow.
Things are more complicated where the person being cared for does not have capacity, but difficulties may still be avoided if there are independent attorneys in place or all of the beneficiaries of the estate can agree what care is needed and how the cost of care should be calculated and met.
Having a clear agreement about what is intended to happen is likely to avoid significant costs, not just financial, in terms of legal expense, but also emotional in terms of family relationships, which can be at their most brittle in the difficult period after the loss of a parent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
