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Giddings, Jeff --- "Opinion" [2002] AltLawJl 23; (2002) 27(2) Alternative Law Journal 56

Enhancing legal service delivery to older Australians

This issue of the journal focuses on the recognition, under­ standing and protection the law should provide to older Australians. The five theme articles identify the need for policy makers, lawyers and educators to reconsider how effectively they are addressing the legal needs of older people. As in most western countries, Australia's population is growing older at a dramatic rate. By 2051, the number of Australians aged 65 and over will have increased from the current figure of 2.4 million to more than 6 million.

While there is considerable interest in some aspects of service provision to older people, the focus of discussions about aged care tends to be accommodation and health ser­ vices. The cost of aged care services as a proportion of Gross Domestic Product (currently around 8.5%) is set to at least double and perhaps treble over coming decades. Earlier this month, the Myer Foundation announced a nine-month independent inquiry into the state of aged care in Australia. The Commonwealth government will publish an intergenerational statement as part of the 2002 budget to be delivered in mid-May.

Sensitising the law to the interests of older people and enhancing their access to legal services appear not to be major issues. Access to justice discussions have tended not to address the interests of older Australians. Many older people are vulnerable to exploitation in similar ways to those groups within our community generally identified as lacking access to the law and legal services.

A central issue raised by the theme articles is the importance of effective communication in identifying and meeting the legal needs of older people. When interviewing and advising older clients, lawyers need to be mindful of the social contexts of those clients. Issues of emotional dependence (and inter-dependence) can be very significant for such clients. This is especially the case where family relation­ ships are involved but can also be significant in relation to neighbours, friends and service providers. Lawyers also need an understanding of both the physical and mental aspects of the ageing process and of the legal issues faced by their aged clients.

Sandra McCullough addresses issues related to the enforcement of the rights given to the users of aged care ser­ vices. She highlights factors limiting the ability of aged care users to make discerning consumer decisions. These include: the reality that consumer demand for aged care services tends to exceed supply; needs for aged care services often arise in times of crisis; the emotional nature of decisions involving family and home; the pressure not to complain; and the difficulties involved in substantiating complaints.

Juliet Cummins calls for reform 'of the law relating to financial guarantees provided by older people. She identifies the particular vulnerability of parents to requests from adult children for the parents' home to be used as security for funds borrowed by the adult child. Cummins details cases where courts have been reluctant to treat guarantees provided by parents in commercial contexts as requiring greater vigilance on the part of credit providers.

Brian Herd and Rosslyn Monro each provide practical in­ sights on the usefulness of agreements dealing with accommodation and care 'services' provided to older people by members of their family, generally their adult children. Monro identifies the range of difficulties faced by older people in enforcing their legal entitlements. She also details cases where courts have been prepared to recognise the financial contributions made by older people to properties owned by younger family members.

Such family agreements may break down due to factors including changing circumstances, misunderstandings, un­ realistic expectations, longer life expectancy and ignorance of the effects of ageing. The likelihood of problems arising with such agreements is increased if family members feel unable to talk openly about their interests and concerns. Brian Herd identifies value in family members discussing what their family agreement might contain and then putting any agreement they reach in writing. At the same time, he notes that circumstances can change both significantly and quickly, rendering an existing agreement ineffective. Legal solutions may be of very limited value in addressing issues caused by changed circumstances.

Jody Thomas and I suggest that Australian legal educators need to sensitise the lawyers of tomorrow to the communication, ethical and legal issues they may encounter in working with older clients. Australian law schools have been slow to learn from North American law schools which offer 'elder law' courses.

The law cannot 'solve' issues related to the vulnerability of older people, especially those arising from emotional interdependence. Some people will be very skeptical of the use of legal measures to regulate relationships involving older people. However, legal safeguards can be put in place to reduce the scope for the vulnerability of some older people to be exploited.

This issue also contains two articles not related to the 'law and older people' theme. Philip Lynch outlines the very interesting history of the Eureka Trials and the role played by juries in resisting government action aimed at removing the rights of citizens. This is significant in the context of re­ cent measures which have reduced the role of juries in certain criminal and civil matters. Jude McCulloch argues that security measures introduced to support the 'War on Terror­ ism' are likely to have far-reaching domestic consequences. In particular, she is concerned these measures will under­ mine the operation of the rule of law.

I hope you find this issue of the Alternative Law Journal interesting and thought provoking.

Jeff Giddings

Jeff Giddings teaches law at Gr(ffith University.


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