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Australian Law Reform Commission - Reform Journal |
Reform Issue 81 Spring 2002
This article appeared on pages 20 - 22 of the original journal.
The concept of elder law
By Sue Field*
As the youngest of the baby-boom generation turns 65 in 2031, the median age of the population is projected to reach 42-43 years, and the proportion of the population aged 65 and over is projected to reach between 21% and 22%.1
Until recently the emphasis of the impact of our increasingly aged population has been upon where and how older persons will live and their anticipated health needs. However, the ramifications of an ageing population impact not only upon health and housing resources but upon the type of legal advice that is required to effectively conduct the increasingly complex legal issues that confront the older client. This article highlights some of those issues and the steps in place to address them.
The increase in divorces and the number of couples entering second and third marriages necessitates a re-evaluation of the distribution and protection of assets for one’s family after death. Simple wills with clauses such as ‘I leave everything to my wife Betty and if she should predecease me or not survive me by thirty days then to my children Mary and Michael’ do not necessarily provide for the children of the first marriage should the surviving spouse choose to remarry or make a different will. More complex wills, which include the creation of testamentary trusts, require time and explanation on the part of the legal practitioner, and increased costs for the client.
Many clients may not understand why a will, which may be advertised for a nominal amount or even free with a conveyance, now costs more than the conveyance of the family home! This increase may appear unnecessary to the client who would prefer ‘something cheaper which does the trick'. Difficulties can arise when attempting to explain to clients the implication of the changes that occur as a result of their increasingly complicated personal lives, increased wealth and complex financial arrangements. Protection of the assets which have taken a lifetime to accumulate requires careful consideration and planning with advice, not only from lawyers but also accountants and financial planners.
The issues
The growth in the retirement village industry (with the various types of accommodation available, eg lease and rental) is an example of a complex situation that many legal practitioners may be confronted with when clients seek their advice on the documentation and the financial implications of entering into these legally binding agreements. Legislation varies from state to state and, if a provider offers high and low care facilities within the retirement village complex, then residents and providers alike must comply with both Commonwealth and state legislation. The situation is further complicated in Queensland with the introduction of separate legislation governing rental retirement complexes.
As mentioned above, high and low care facilities (such as nursing homes and hostels) present the unsuspecting legal practitioner with a myriad of interwoven Commonwealth and state legislation, regulations, principles, and standards that must be complied with. For example, under the Aged Care Act 1997 (Cth) aged care providers are required to offer a Residential Care Agreement or Residential Bond Agreement to ‘care recipients’. To ensure that these Agreements comply with the requirements under the Act, the documents are often lengthy and may appear confusing to many intending residents and/or their representatives. Legal advice is recommended before entering into these agreements as the document is legally binding on the parties. Quite often the ‘care recipient’ and his or her representative may find the financial cost associated with seeking the legal advice prohibitive and to many lawyers the complexities of the relevant legislation are outside their normal scope of practice.
Notwithstanding the amount of publicity that aged care facilities attract, it must be kept in mind that based on 1998 figures only 6% of people over the age of 65 reside in hostels or nursing homes.2 For those older people who choose to stay within their own homes or move in with families, issues surround the distribution of wealth to the family member who chooses (or is chosen) to care for an elderly parent. The introduction of family agreements, a new concept in Australia, attempts in some way to address some of the inequities that may arise as a result of an adult child giving up a career and financial security to care for his or her aged parent. [Editor’s note: see article by Brian Herd on family agreements at page 23]
Conversely, older persons may be prevailed upon by their children to act as guarantors for them in respect of home loans or business dealings. The law is yet to adequately address the emotional obligations which influence parents’ actions in these situations.3
The creation of family trusts and companies, the use of mutual wills, and the social security issues associated with increases in superannuation and redundancy payments require competent legal advice, often in conjunction with accountants and financial advisors. It is apparent then that practising lawyers may need to re-evaluate their knowledge and skills if they intend to provide a service to older clients. Law schools will also need to address in their curriculum the legal issues associated with ageing.
The solutions
Wake Forest University in North Carolina is an example of a university that has addressed the issue of the legal needs of the elderly within its curriculum. The Clinic for the Elderly (which is situated within the Law School) conducts a program where law students, under supervision, deal directly with clients. Centres such as this not only complement the theoretical knowledge gained within the curriculum but provide students with the practical skills required to effectively deal with the concerns raised by the older client.
The absence of a centre in Australia which focussed on elder law issues and the apparent need within the legal fraternity for courses addressing the legal needs of older persons provided the impetus for the creation of The Centre for Elder Law at the University of Western Sydney (UWS), a research centre attached to the School of Law. The focus of the Centre is to contribute to the advancement and awareness of the legal interests of elders in the Australian community. This mission is achieved by:
• undertaking focussed, sponsored research for the aged and retirement community;
• actively contributing to the discussion, debates and publications which raise awareness in the community of the legal rights and responsibilities of older people in Australia; and
• developing and delivering programs for community and professional education and training.
In 2002 the Centre (in conjunction with the Institute of Chartered Accountants in Australia) conducted a half-day seminar for legal practitioners in Queensland. The seminar addressed key legal issues which affect older persons. Topics included older persons as guarantors, estate planning, wills, testamentary trusts, family agreements, substitute decision-making, agreements for aged care facilities and retirement villages, and social security issues associated with ageing. As a result of the seminar, further introductory seminars are planned.
Another initiative of the School of Law at UWS was the introduction of an Elder Law elective within the Bachelor of Law degree (the first law school in Australia to offer a subject specific to elder law).4 The Centre is currently developing modules (which can be undertaken externally) which cover in detail the legal issues affecting older persons. While the target audience is legal practitioners, some of the modules will be of value to other professionals who provide services to the older person.
In July the Centre hosted a symposium titled ‘Experimenting on the Aged'. The symposium highlighted the tensions between protection of human rights of older Australians and the public interest in the advancement of medical knowledge with experimentation on the elderly. The format of the day provided registrants with the opportunity to engage in the debate which focussed on the policy implications and ethical considerations of experimentation when the subjects are elderly and their mental capacity may be in question.
A further initiative of the Centre has been the establishment of the first elder law refereed electronic journal in Australia. The inaugural edition of The Elder Law Review attracted contributions from national and international experts in the area of Elder Law. The Review, which is multidisciplinary, is designed to bring together academics, practitioners and those involved in the provision of aged care services. Recent articles have highlighted areas as diverse as depression in the elderly, the allocation of health care resources, the challenges facing legal practitioners when dealing with older clients, and a perspective on the adult guardianship laws in Ontario.
Information on the Centre for Elder Law can be obtained from the Centre’s website which is www.uws.edu.au/law/elderlaw/index.html
The future
Elder law is an emerging speciality in this country. As the population ages, there will be a greater need for legal practitioners with expertise in this area. Specialisation and accreditation of elder lawyers has already occurred in some overseas countries. The presence in the United States of America of organisations such as the National Academy of Elder Law Attorneys Inc (NAELA) promote the need for and education of specialist lawyers. Although Australians are eligible to join NAELA, there is no corresponding organisation in this country. However, acknowledgment amongst practitioners that there is a need for specialised knowledge in this area is the first step...
* Sue Field is a Senior Research Assistant at the Centre for Elder Law, University of Western Sydney.
Endnotes
1. Australian Bureau of Statistics, Australian Social Trends 1999 Population – Population Projections: Our Ageing Population, (1999).
2. Australian Bureau of Statistics, Australian Social Trends 1999 Housing – Housing Assistance, Home Care, Hostels & Nursing Homes, (1999).
3. See J Cummins, ‘Older Persons as Guarantors’ [2002] AltLawJl 25; (2002) 27(2) Alternative Law Journal 63.
4. Griffith University in Queensland now offers an elective addressing the issues that surround the older person and the law.
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