As Malaysia considers making adult children legally responsible for their ageing parents, questions remain over what ‘care’ should mean, and how the law should deal with distance, divided families, and parents who once failed their children.
KAVEETHA S. has never met her father.
Her parents divorced shortly after she was born, and her father subsequently disappeared from her life without providing child support.
In all her years, she has had no idea where he is or what he has been doing.
So when the 35-year-old heard about the proposed Parental Care Act, which could impose a legal obligation on adult children to care for their ageing parents, the first question that came to her mind was, “Will the government make me take care of someone who is essentially a stranger to me?”
Kaveetha’s circumstances illustrate one of the difficult questions Malaysia will have to grapple with if filial responsibility moves from a social expectation to a legal obligation, following Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s announcement in May that the government is drafting a Bill for filial care responsibility.
Families do not always fit neatly into a model of elderly parents being cared for by children who live nearby, have the financial means to support them, and share healthy relationships with them.
Some children live hundreds or thousands of kilometres away.
Others have siblings with vastly different incomes and responsibilities.
And some, like Kaveetha, have little or no relationship with a parent because of abandonment, neglect, or abuse.
Before a law such as the Parental Care Act can work, lawyers say Malaysia will first have to establish what an adult child’s duty to “care” for a parent actually entails.
Lawyer Kokila Vaani says care should be defined through forms of assistance that can be objectively identified, such as financial maintenance, accommodation, food, medical treatment, and essential daily needs.
Reasonable arrangements for physical caregiving could also be included when a parent can no longer care for themselves.
“However, I don’t think things like regular contact, affection, or emotional companionship should ordinarily be independently enforceable.
“Those things are very subjective and difficult to measure consistently,” she says.
Concurring, Malaysian Bar co-chair of the family law committee Rajashree Suppiah notes that physical caregiving and regular contact are hard to legislate and, as they are unmonitored, could potentially lead to elder abuse.
Caring from afar
Distance is another complication for filial care.
Syazlina Rahman, 37, lives in Petaling Jaya while her father lives in Kuantan with four of her siblings.
Although she does not currently provide him with financial support as her parents had prepared for their retirement, she visits at least once a month, speaks to him daily on the phone, and has groceries delivered to him.
For Syazlina, caring for a parent simply means providing “whatever they need that they can’t do on their own”.
Kokila says living in another state or country should not automatically absolve a child of responsibility, but distance should affect how that responsibility can reasonably be fulfilled.
A child living overseas, for example, could contribute towards medical expenses or professional caregiving rather than being expected to provide daily physical care.
“The law should distinguish between the existence of obligation and the way in which the obligation is performed,” she says.
Enforcement across borders, however, could present another challenge.
Rajashree says while there are ways to enforce court orders and judgements overseas, the costs involved could make a parental maintenance order ineffective in practice.
Equal may not be equitable
Even when children live nearby, deciding who bears responsibility could prove contentious.
Both lawyers say responsibility among siblings should not necessarily be divided equally.
Rajashree says each adult child could be liable, but their contribution should reflect their circumstances.
“Equal is not necessarily equitable,” she says, noting that a university student, a working single adult, and a parent supporting children of their own would have very different financial capabilities.
Meanwhile, Kokila says Malaysia could recognise different forms of contribution.
She cites a case in China involving a 94-year-old woman whose three children were required to provide physical care for four months each year, while the siblings shared medical expenses.
Such arrangements already occur informally among many Malaysian families, says gerontologist Lily Fu.
But she warns that when siblings cannot agree, one sibling could end up disproportionately shouldering most of the responsibilities of filial care.
Absent parents
Perhaps the most difficult cases to consider when legislating filial care are those where the parent seeking care had previously abandoned, neglected, or abused the child.
Andrew Yoong, who now lives overseas and is no longer a Malaysian citizen, is estranged from both parents.
He described a childhood in which his father was physically and emotionally violent towards him, while his relationship with his mother eventually broke down as an adult.
“If my relationship and situation with my parents were different, I would not hesitate to take on the responsibility, given I had the means,” he says.
But another issue arises if the proposed law were to recognise past parental abuse as grounds for exemption, as Yoong says there is no documentation of the abuse he experienced.
That raises another question for lawmakers: If an exception is provided for children who were abused or abandoned decades earlier, how would they prove it?
Rajashree says medical reports and other records may have long since been destroyed or never existed.
Evidence might therefore have to come from the accounts of relatives, teachers, neighbours, social workers, or others who witnessed what happened.
Both lawyers say, however, that estrangement alone should not necessarily remove a child’s obligation.
Instead, the circumstances that caused the estrangement, including serious abuse, abandonment, or neglect, should be examined.
Hearing both sides
Singapore’s Maintenance of Parents Act could offer Malaysia one model for resolving such disputes.
Rajashree notes that Singa-pore’s system emphasises conciliation before disputes proceed to its Tribunal for the Maintenance of Parents, with the courts acting as a later avenue.
Fu also favours a tribunal mechanism where the circumstances of both parent and child could be heard.
“If you have a tribunal, it doesn’t mean that every case that’s brought up, the parent, the elderly will win. Sometimes they lose,” she says.
Such a body could consider claims that a parent had abandoned or mistreated their child, as well as the adult child’s financial ability to provide maintenance, she adds.
But Kokila cautions against simply transplanting Singapore’s system to Malaysia, describing it instead as a useful comparative model.
While she sees a role for a tribunal and welfare assessments, she favours civil courts taking the primary role so that judicial precedent could develop around questions such as reasonable care, sibling responsibility, and previous parental abuse or neglect.
As Malaysia is in the process of drafting the Bill, the challenge will be translating a simple principle that children should not abandon vulnerable elderly parents into legislation capable of accommodating families whose circumstances are anything but simple.
For children such as Kaveetha, those details will determine whether the law recognises not only what parents may be owed by their children but also the history between them.
