Law and order

Elizabeth Mabin investigates Australia’s current legal system and the recommendations made last year in a report questioning the adequacy of our laws for older people.

Some say age is a state of mind, other’s say in Australia that it’s a state of vulnerability.

Australia is one of the few countries in the western world without a specific body of law in place to protect the elderly. The overseas jurisdictions of America, Britain and Canada have all introduced a legal specialty known as ‘elder law’. In the United States, elder law is a major part of legal practice with most states having their own unique legislation aimed at protecting the interests of older people.

To the uninformed individual, this may seem a little extreme. Has it really come to this that our society needs a body of law to tell us how to act towards older people? It seems it has.

The Human Rights and Equal Opportunity Commission says age discrimination is prevalent in Australia, with widespread reports around the nation. .According to the commission, there are a small number of complaints registered by anti-discrimination agencies, but this is because many older people are wary of making a complaint. It’s also common for people to hold the opinion that making a complaint won’t change anything so what’s the point? Age discrimination generates enormous personal distress, and older people frequently feel demeaned, rejected or ignored on the basis of age.

Underpinning much of the discrimination against the elders of the community are negative attitudes towards ageing and stereotyping. Popular culture’s obsession with youth and beauty, combined with negative portrayals of older people in the media, reinforce the view of older people as incapable, frail and a burden. Unfortunately, the media tends to portray seniors as frail and disabled, when in fact the senior population of Australia is active within their respective local communities and make a significant contribution to our society today.

In contrast to ancient societies which have traditionally revered the elders of the community as the wisest, modern western society attaches a negative stigma to ageing. In a desperate race against the inevitable effects of ageing, many are drawn into an endless search for eternal youth. Products and gimmicks abound, all promising to deliver dramatic anti-ageing benefits. This type of attachment to youth within communities can attribute to levels of disrespect that ultimately breeds discrimination.

In 2006, then Attorney-General Philip Ruddock asked the House of Representatives Legal and Constitutional Affairs Committee to report on the adequacy of current laws relating to the legal needs of older Australians. The committee investigated fraud, financial abuse, general and enduring power of attorney provisions, family agreements, barriers to older Australians accessing legal services, and discrimination on the basis of age.

The committee published a subsequent report at the end of last year – Older people and the law – with 48 recommendations.

These included calls for the Australian Institute of Criminology to investigate fraud and financial abuse against the elderly, as well as proposals for state and federal attorneys-general to examine ways of standardising state laws relating to retirement villages and power of attorney.

It was also recommended a national register of those holding powers of attorney be developed, and a nationally consistent approach to the assessment of a person’s mental capacity to give others the legal right to act on their behalf be implemented.

The recommendations were in response to 157 submissions, 14 supplementary submissions, 170 exhibits and numerous personal statements made to the committee. These detailed instances of elderly people enduring the contempt of younger adults, mistreatment by the medical profession or discrimination under the law simply because of their age.

The importance of this topic cannot be understated. As Australia’s population continues to age, the issue of ‘elder law’ will only become more relevant. The demands and needs of older people for legal services are only likely to increase in the future given the ageing population and increased life expectancy. Some 13 per cent of Australia’s population is aged over 65 years. By 2036 this figure is expected to rise to 24 per cent, and by 2046 over a quarter of Australia’s population will be in the 65 years and over age bracket.

The effect of this ageing population will produce challenges in areas such as aged care and health, labour market participation, housing and in terms of social policy. In relation to this last point the report states there will be a need “to ensure that older Australians live safely and without fear of abuse, violence or exploitation”.

The report states the range of legal matters facing older persons is by no means limited to issues regarding wills, powers of attorney, guardianship and administration. Older people may also seek legal advice in areas including accommodation issues, age discrimination, property issues, consumer issues, family law issues, health issues and welfare issues.

In many cases the legal issues faced by elderly people could be faced by anyone. Therefore in regards to ‘elder law’, it is not so much a case of formulating specific laws for older people, but rather it is largely an issue of examining whether there are any barriers to older people exercising their legal rights.

These barriers can include the nature of the legal system itself but also a range of personal factors, such as health, mobility, capacity and social networks. Further, legal practitioners do not always have an interest or sufficient expertise in the many legal issues affecting older people.

For many elderly people, the inexperience of legal advisors is irrelevant in any case as private legal advice is beyond their means. In response to this issue the report recommended the Australian Government examine a rebate scheme for legal fees for older Australians to improve access to legal services.

It seems that having lawyers specialising in elder law and devoting their practice to this area is a must for our ageing community. No doubt this is an issue we will be hearing much more on in the near future.

Furthermore, there needs to be a shift in the mindset of all Australians in their attitude towards older generations. There is something to be said for the old-fashioned value of respect. Perhaps it is time for Australians to take a look at cultures of the world where elders hold a dignified position as the head of their family, honoured for their wealth of wisdom and life experience.

Respect for elders needs to permeate not only the home but also the workplace. There should be awareness among employers of the benefits of recruiting older people. These include productivity, lower recruitment costs and higher retention rates.

Older people want public education that is positive about their contribution and role in society – and they should get it.

Article provided by The Retiree Magazine

Law and order

Elizabeth Mabin investigates Australia’s current legal system and the recommendations made last year in a report questioning the adequacy of our laws for older people.

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