Older people and the law

Introduction

Older Australians require access to legal services for a variety of reasons, including wills and powers of attorney, property and accommodation issues, family law matters involving grandchildren, health services, consumer and financial issues, and as victims of elder abuse.¹ However, for many older people, their access to legal services is constrained by factors that are largely beyond their control.

The Committee found that the existing legal system is not well equipped to meet the legal needs of older people, who often have complex needs but require low cost solutions that are targeted and delivered in a specific way. Initiatives to address these needs are often constrained by funding and the difficulty of obtaining suitably qualified people.

This chapter discusses the barriers encountered by older Australians in accessing legal services. It also looks at the options that are available to older people to obtain legal assistance and examines how these might be expanded or improved.

The Committee recognises that while a number of the barriers identified in this chapter are specific to older people, others are also relevant to a broader cross section of Australian society.

Legal needs of older people

Older people are not a homogeneous community.² However, previous studies and experiences have identified that, in broad terms, older people have specific needs in relation to the delivery of legal services and that they generally access information and services in a particular way.³ Loddon Campaspe Community Legal Centre characterised older people as requiring legal services that are:

• Face to face;
• Based in the local community;
• Multi-disciplinary;
• In the best interests of the older person; and
• The least restrictive in approach.⁴

In addition, the Law and Justice Foundation of New South Wales highlighted that older people require:

...legal practitioners who provide explanations in simple terms, are friendly, courteous, inexpensive, expert in dealing with older people and do not require the older person to exercise a lot of ‘self-help’.⁵

...Will older people come?' No, they do not readily make use of legal services. They like to reveal an issue to their family first, perhaps, and then perhaps to their physio, their local doctor or their podiatrist, and then they come through to the legal service.⁸

Barriers to access

Many older people have a number of issues that require resolution. For example, Caxton Legal Centre told the Committee that:

…many of our older clients’ legal problems tend to be multi-layered in nature and often involve a mixture of questions relating to estate planning, social security entitlement, capacity concerns and substituted decision making, undue influence, other forms of abuse and exploitation, family law, property issues and systems abuses.¹¹

Accordingly, this mix of issues also means that a range of laws apply. The Aged Care Crisis Team commented that:

Federal and State laws abound and cover almost every facet of life, from: accommodation, living arrangements, estate planning and management, financial affairs, medical treatment, and these are only a few such areas.¹²

The Committee notes that it is areas in which older people would greatly benefit from legal advice where they often encounter difficulties. For example, as is discussed in Chapter 7, retirement village contracts were raised by a number of participants as an area requiring considerable time commitments and resources due to the complexity of the contracts. Significant costs are therefore involved in obtaining legal advice. Ms Andrea Simmons of the ACT Disability, Aged and Carer Advocacy Service commented in relation to retirement village contracts:

What we find is that some of the contracts that people sign to go into residential aged care and the contracts that they get involved in in retirement villages are so extraordinarily complex that no ordinary person should be engaging in those without actually getting quite a lot of good advice.²⁰

Many people are prohibited or discouraged from taking legal action where they require an expeditious solution because existing legal systems are limited in their capacity to provide swift and effective legal remedies, quick and effective decision making or dispensation of justice in times of dispute.²⁶ The Aged Care Crisis Team told the Committee in relation to aged care that:

If the health and well being of the resident is being compromised, speedy action is needed to prevent further deterioration (or death). At present, the avenues of redress are limited and the courts and tribunals are ill-equipped to deal quickly and cheaply with such an issue.²⁷

For many people, private legal advice is beyond their means, principally due to cost:

You must realise that all of us at this age are on the age pension, an income of something like $37 each day. We certainly cannot afford a private solicitor so we are dependent upon the free services of the community legal centres and the others that are available.²⁸

The Committee heard that for many people a lack of awareness as to where to obtain legal information or difficulties in accessing this information is their main barrier. For example, technology can present a significant barrier:

We are talking about people of 70 or 80: we do not have computers; we do not know how to make them go. We often try to telephone, and then there is this choice, this menu: 1, up to 10 – and you’ve lost it!³⁵

Social and cultural barriers

In addition to the barriers already identified, the Committee received evidence as to a range of social and cultural issues that are particularly relevant to the current generation of over 65s. Many participants commented that older people generally are unaware that they may have a legal problem or the right to complain or seek redress in certain situations. Ms Susan Field of the University of Western Sydney observed that:

I think one risk factor for older people is a general lack of information – I hesitate to use the word ‘ignorance’, but a lack of information – in respect of their rights.³⁸

Caxton Legal Centre also commented that:

It is apparent that, due to the numerous barriers that older people are confronted with, many do not even seek to raise or identify, their legal problems, let alone attempt to obtain legal advice about their rights and options for remedying the situation... Similarly, we have learnt that older people do not usually self identify that they have legal rights or a legal problem…³⁹

Mr Robert Harvie, a 72 year old resident of a retirement village, expressed the view that many older people:

…have no idea as to what the law is about, let alone how it pertains to them and what the language used by the legal profession is about.⁴⁰

The Committee heard that because many older people do not conceptualise an issue as a legal one, they do not see the need for legal advice.⁴¹ This can result in older people placing themselves in vulnerable situations from which, when an adverse event consequently occurs, they are unable to obtain a legal remedy. For example, as discussed in Chapter 4, many older people frequently encounter difficulties in this respect with family agreements that are not documented. Older people often do not envisage that such agreements could be financially disastrous if the arrangements fail or that that they could be left vulnerable, with few assets to pay for care needs.⁴² For many in this situation, an additional barrier is then a lack of confidence in enforcing their rights:

It is all very well to increase access to legal services … but at the same time there needs to be some assistance for the older person to make the psychological commitment to get to that service.⁴³

The Committee heard that many older people are reluctant to take legal action and to complain about issues affecting them.⁴⁴ The National Seniors Association told the Committee that:

…for older people to have access to legal services, they need to have a level of confidence and empowerment to do so, and this is often hampered by fear of exploitation, retribution, unwillingness to disclose personal information, complex family dynamics, and a wide range of attitudes towards the idea of substitute decision making.⁴⁵

This is often compounded where the issue involves a family member. For example, the Alliance for the Prevention of Elder Abuse: Western Australia highlighted that:

…older people are reluctant to press charges because of family ties and the responsibility they feel for the perpetrator’s welfare. They do not want to get their relative ‘in trouble’ or thrown in jail, and want to maintain a personal relationship with the perpetrator, or to be able to have contact with their grandchildren.⁴⁶

Personal barriers

An older person may lack the physical or mental capacity to pursue legal services through physical disability, dementia or other reduced cognitive ability.⁵² They may not be able to travel to services:⁵³

For many, the problem may be as simple as having an impairment or disability that makes it virtually impossible to seek out and travel to the offices of a legal provider.⁵⁴

…my elderly mother’s health made it impossible for her to address her situation via legal channels and I don’t believe many elderly people could cope with the added burden of finding an appropriate lawyer to instruct, let alone cope in the court system.⁵⁵

Similarly, many people in aged care facilities or without a strong support network:

…are virtually prisoners of their infirmity and may not have an emotional or cognitive awareness that would motivate them to take action to protect their legal rights or interests.⁵⁶

Failing eyesight and hearing can compound the difficulty in accessing printed materials and/or making telephone calls.⁶¹ Caxton Legal Centre commented that:

This, combined with mobility difficulties means that older clients become increasingly reliant on obtaining advice and gleaning information about legal issues “third hand” – that is, by asking neighbours and family to find out answers to questions for them – and often, in turn, receive misinformation.⁶²

Ms Helen Campbell of the Redfern Legal Centre told the Committee that one of the major barriers to accessing legal services for older people within the Waterloo area, the largest public housing area in New South Wales, was fear of crime:

Even though they are in the middle of a bustling metropolis with many services readily available to them, they were essentially isolating themselves because of distrust of their neighbours and distrust of the services that would otherwise be available to them.⁶³

The Alliance for the Prevention of Elder Abuse: Western Australia told the Committee that barriers are compounded for older people of Indigenous and culturally and linguistically diverse backgrounds for the following reasons:

• Aboriginal people age more rapidly than non-Aboriginal people due to inter-generational health and socio-economic issues;
• Many Aboriginal people live in rural and remote communities where there is only limited access to legal and other services;
• Many people distrust the police and legal services based upon past discriminatory experiences; and
• Mainstream services can have variable cultural and linguistic relevance to Aboriginal and culturally and linguistically diverse people.⁶⁴

Mrs Maureen Sellick of Advocare commented that:

We do not get many Aboriginal clients ringing us up, because they do not like the idea of approaching mainstream services.⁶⁵

Legal Services

Legal Aid

Other services, including grants of legal assistance, primary dispute resolution services and legal representation, are contingent upon meeting the requirements of funding agreements.⁶⁸ For example, state and territory commissions receive funding from the Australian Government to provide assistance for matters arising under Commonwealth laws. Grants are then provided by commissions in accordance with Commonwealth priorities and guidelines.⁶⁹ Legal Aid Commissions are therefore required:

• To ascertain that each application for a grant of assistance for legal representation falls within the guideline relevant to the Commonwealth Law matter type for which assistance is sought; and
• To apply a means test to the application; and
• To apply a merit test to the application; and
• To grant legal aid in accordance with the prescribed Commonwealth “priorities”. ⁷⁰

The Committee was informed by the Attorney-General's Department that:

Older persons can access legal aid through legal aid commissions and community legal centres in the same way and under the same conditions as other members of the community.⁷²

Mr David Walsh, a private legal practitioner, observed that:

We all know that the bulk of legal aid is given in criminal matters, usually to people, often men, who are charged with property offences or domestic violence type situations… When legal aid budgets are completely dominated by those sorts of considerations, any attempt by people to get aid because they would argue that their son, daughter, cousin or whatever has defrauded them of their money or kicked them out of the granny flat or whatever, is doomed to failure.⁸⁰

The means test was raised as an issue by a number of inquiry participants. Caxton Legal Centre highlighted that many older people who are home owners are ineligible for legal aid despite being reliant upon a pension or other government benefit as their main means of support.⁸¹ National Legal Aid told the Committee that the means test ‘has a low threshold for assets’ and does not sufficiently recognise the financial position of those people with ‘very modest savings’.⁸² Accordingly:

…many people who presently do not qualify under the Means Test are not able to afford the services of private lawyers to conduct their cases or at least not able to do so without undue hardship.⁸³

The Committee was pleased to see that this issue has been recognised by legal aid commissions and that work has been undertaken to address the matter. Mr Norman Reaburn of National Legal Aid told the Committee:

We have to operate a means test. The means test is not particularly well crafted to accommodate a range of the problems and issues that face older Australians. A high proportion of older Australians have comparatively low incomes but are reasonably well off in terms of assets. That tends to mean that they will fail our means test, even though their actual disposable income is not particularly significant.⁸⁴

I do have to say that National Legal Aid, in conjunction with the Commonwealth, has had this feeling for some time in a range of areas. We have been doing some work on the means test in an attempt to try and find ways to make it fairer and to allow it, particularly in the area that this committee is looking at, to accommodate a greater range of available services to older people. That is the first thing that we need to stress to the committee.⁸⁵

The Committee also received evidence that many older people require assistance to sort out their affairs rather than proceed with litigation:

The expansion of “Minor Assistance” or “Brief Services” programs with a relaxed means and merit test would allow Commissions to spend limited time assisting people, including older people, to negotiate and resolve a range of legal issues without recourse to litigation. In many consumer areas there are national external dispute resolution schemes… Many people require assistance to gather and present the facts of their cases so as to be able to access these schemes and resolve a range of common consumer disputes.⁸⁷

While the Committee acknowledges the need to prioritise available funding, it is concerned that limited funding combined with the existing eligibility criteria results in many older people being unable to access legal services. As Mr Stephen O’Connor of the Legal Aid Commission of NSW highlighted to the Committee:

Our funding is an area of anxiety. It limits the way we can provide services and limits the number of people who can receive those services.⁸⁹

The solution, in National Legal Aid's view, is:

An increase in funding so as to enable the easing of the means test would result in more people qualifying for legal aid.⁹⁰

The Committee notes that additional funding for legal aid was announced in the 2007-08 Budget for services in regional, rural and remote areas, for separated families and for serious criminal prosecutions.⁹³ However, it is not clear to the Committee whether this will assist older people, particularly in the area of greatest demand: civil law. National Legal Aid told the Committee:

…we anticipate increasing demand over the coming years for an expansion of our civil law services. It will not be possible for Commissions to meet this demand without funding adequate for the purpose and funding agreements which support the delivery of the required services.⁹⁴

Family Relationship Centres

The Committee heard that around ten per cent of the clients accessing one particular centre are grandparents. Ms Jennifer Hannan of Family Services Australia and Anglicare Services in Western Australia told the Committee:

I think there is evidence to suggest that the advertising around the new family law changes and the family relationship centres has certainly engaged somewhat with grandparents and they are certainly more aware of their rights in relation to seeing their grandchildren.⁹⁸

Community Legal Centres

The Attorney-General’s Department commented that:

Assistance is directed towards people who experience some form of systemic or socio-economic barrier to accessing legal services and/or whose interests should be pursued as a matter of public interest.¹⁰⁴

The Committee received evidence that CLCs are well placed in terms of their manner of operation to provide legal services to older people. For example, Ms Jeni Lee of the Federation of Community Legal Centres (Vic) Inc told the Committee:

We believe that we are in a very good position to act as gatekeepers to some of those more highly sophisticated and intimidating issues that face people as they age.¹⁰⁷

Professor Jill Wilson of the Assets and Ageing Research Team at the University of Queensland also commented:

It is clear from our research that older people will benefit from timely and independent legal advice. However, many are unlikely to contact a solicitor in private practice. In addition, many solicitors find it difficult to charge adequately for the time taken by people who wish to take a more conversational approach to the issues.

It is in this context that community based legal services are most appropriate. They can raise awareness of the financial management issues that are a key part of aged care, they can support service providers … and they can provide appropriate legal advice to older people. Such services can also provide much-needed outreach services to those who are unable or loath to access legal services that are more formal. The combination of social worker and legal practitioner in such services also allows older people to access short-term counselling and referral to community services as well as legal information and advice. ¹⁰⁸

The Committee heard that the Seniors Advocacy Information and Legal Service (SAILS), operated through Caxton Legal Centre, provides the following services to people over the age of 60 who are at risk of abuse:

• Court representation;
• Crisis and short term counselling, including the development of safety plans;
• Referral to other legal and/or support organisations;
• Information, advice and support to service providers;
• Arranging pro-bono legal assistance (where possible) for more complex legal matters such as recover of money or property; and
• Community legal education.¹⁰⁹

Similarly, the Federation of Community Legal Centres (Vic) Inc told the Committee that the 52 CLCs across Victoria assist people with free legal advice, information, assistance, advocacy and representation, and community legal education.¹¹⁰ The Committee heard that these CLCs take a multidisciplinary approach:

…by looking beyond the strictly legal issues and working collaboratively with other disciplines, such as health, financial counselling, housing and others.¹¹¹

The EAPU in Queensland also told the Committee that the ‘Legal Outreach for Older Persons’ program that operated from Caxton Legal Centre paired a lawyer with a social worker to provide a more holistic approach to the legal matters affecting older people.¹¹² The EAPU commented that:

This model recognised that older people may need the support of a social worker when accessing the law as an older person may require assistance with a number of unaddressed needs.¹¹³

The Committee notes that the mode of delivery is an essential component to many of the services provided by CLCs. For example, in its submission, the Federation of Community Legal Centres (Vic) Inc highlighted a number of initiatives, including:

• Home based service for the frail elderly during the day;
• Evening ‘road shows’ through aged care facilities;
• Visits to public housing estates to offer a legal service in a safe setting;
• Community legal education workshops; and
• Involvement of final year law students in clinics.¹¹⁴

Similarly, the Loddon Campaspe Community Legal Centre commented that in its experience:

Service models for older people should include outreach services in local communities, partnerships with local community agencies and groups, community legal education to raise awareness of issues and options, legal services that specialise in older people’s legal issues, legal assistance and education in simple terms.¹¹⁵

This was echoed by both the Law Society of South Australia and the Aged Rights Advocacy Service.¹¹⁶ Ms Paula Stirling of the Law Society of South Australia observed that:

Outreach services have proven to be highly effective in reaching client target groups who would not normally access traditional legal services. Given the restricted ability of some older people to attend additional legal appointments, outreach services to locations frequented by older people may be an effective way to deliver legal assistance to where it is needed.¹¹⁷

The Committee considers CLCs to be well placed to provide information, advice, counselling, and advocacy to older people in one location. Ms Jeni Lee of the Federation of Community Legal Centres (Vic) Inc observed:

And that is exactly what they want. They want a one-stop shop where they get legal services but they also get legally related information. It may not identify for them their legal problem but it will tell them about what advocacy services are available and give them other sorts of information.¹²¹

In addition, the Committee considers that initiatives that focus specifically upon the legal issues affecting older people are also important. During the hearings, Ms Susan Field of the University of Western Sydney told the Committee:

I would certainly see community legal centres having staff experienced in elder law issues such as retirement villages, aged-care facilities, reverse mortgages, substitute decision making and Centrelink issues, of course. They would have a hotline people can ring―not one where you press several numbers but a number where an actual person will speak to you―and they could have the carriage of matters and take matters to court if needs be.¹²²

During the course of the inquiry, the Committee heard of a number of initiatives focussed specifically upon services for older people, including:

• An Elder Abuse Information, Support and Legal Service, to commence in mid 2007 with funding from the WA Government.¹²³
• An Older Persons Legal Service that had been allocated $1.2 million over four years to provide general legal education and advocacy services, and which will operate under the auspices of Victoria Legal Aid.¹²⁴
• $1.9 million from the Queensland Government to fund a trial legal service in Cairns, Townsville, Toowoomba, Hervey Bay and Brisbane based upon the SAILS model but with an expanded focus upon financial abuse.¹²⁵
• An Older Persons' Rights Service that commenced on 1 July 2007 and which will be jointly delivered by Northern Suburbs Community Legal Service and Advocare in Western Australia.¹²⁶ This service will provide legal and social support for people affected by elder abuse and community legal education.¹²⁷
• An Older Persons Legal Program, established by Loddon Campaspe Community Legal Centre in May 2006 and funded by philanthropic trusts to provide casework, community legal education and policy/law reform for older people.¹²⁸ The Committee was interested to note that this program has established outreaches at a number of community health centres and Bendigo Base Hospital to ‘acknowledge the convergence of health, social and legal issues for many older people’.¹²⁹

The Committee heard that many older people are unable to access the services of CLCs simply because the CLCs lack resources.¹³¹ This includes funding limitations and the difficulties in attracting suitable staff:

I cannot miss this opportunity to say that the wages of community legal centres are notoriously hopeless and it is becoming increasingly difficult to attract and retain quality staff.¹³²

Mr Gregory McDougall of the Caxton Legal Centre told the Committee that in his view:

The legal problems faced by older people have been hidden, obviously, but in our view they are going to become more acute and much more publicly visible in the next 10 to 15 years, not just because of the ageing population but also because of the increasingly complex legal environment that older people are finding themselves in. We have found in the last 10 years that generally, across the board, matters that are coming to community legal centres are becoming increasingly multilayered and complex, and particularly so with older clients.¹³⁴

He went on to argue that :

The government needs to invest heavily now to avoid these problems that are going to impact downstream. We say that a logical investment would be to inject substantial funding into the community legal sector to provide services to older people. In Queensland, it has been the Department of Communities that has taken the lead to provide legal services to older people. That is because our approaches to the Commonwealth, Attorney-General’s and state legal aid to date have not been successful. We are hoping that as part of the pilot outcome there will be recurrent funding made available… ¹³⁵

For many older people, their key need in terms of adequate legal services is access to free or low cost, easily accessible and appropriate targeted services. Ms Andrea Simmons of the ACT Disability, Aged and Carer Advocacy Service observed:

What we are really looking for is certainly a low-cost provision of legal advice to elderly people on specific areas that affect them.¹³⁶

Older people as offenders

The Legal Aid Commission of NSW argued that with an ageing population:

Given the nature of the demographic, it is not surprising that offences involving social security fraud constitute a significant proportion of offences that older people are charged with. The case law is well established that general deterrence required that offences involving social security fraud will generally attract a custodial sentence. The issue for the criminal justice system is balancing the purposes and principles of sentencing to ensure that the sentence reflect not only the offence but the offender... It is also important where the priority given to general deterrence results in a harsh or oppressive sentence. Incarceration without effective geriatric prison care can result in deterioration of physical and mental health, reduced life expectancy and can result in premature death.¹³⁸

The Committee notes that the Australian Law Reform Commission (ALRC) released a report on sentencing of federal offenders in April 2006.¹⁴¹ In that report the ALRC identified a number of categories of federal offenders that might require special consideration in regard to sentencing of federal offenders. These include young offenders; those with a mental illness or intellectual disability; women; offenders with family and dependants; Aboriginal and Torres Strait Islanders; those from linguistically and culturally diverse backgrounds; offenders with a drug addiction; and those with problem gambling issues. Interestingly, the ALRC in its report noted:

These are not the only categories of federal offenders with special needs that arise in the context of sentencing. During the course of the Inquiry stakeholders expressed concern about sentencing options for elderly offenders and access to rehabilitation programs by non-citizen offenders. It has not been possible to discuss every possible category of offender with special needs in the Inquiry. Nevertheless, stakeholders have highlighted the need for other categories to be considered further.¹⁴²

In regard to accommodation for older prisoners, in the UK there is a purpose built unit for older prisoners located at Norwich. The unit can only house 15 prisoners as the Prison Service has restricted admissions to those serving life sentences, who might ordinarily not expect to be released:

It is operated as a secure nursing home and can cope with all but acute illness. The facilities can adapt to all disabilities.¹⁴³

Ms Narelle McDonald, Submission No. 2, p. 8. Back