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Tilse, Dr. Cheryl; Setterlund, Dr. Deborah; Wilson, A/Professor Jill; Herd, Brian --- "Legal Practitioners and Older Clients: Challenges and Opportunities for Effective Practice" [2002] ElderLawRw 11; (2002) 1 Elder Law Review 34


LEGAL PRACTITIONERS AND OLDER CLIENTS: CHALLENGES AND OPPORTUNITIES FOR EFFECTIVE PRACTICE

Dr. Cheryl Tilse, Dr. Deborah Setterlund, A/Professor Jill Wilson, Mr. Brian Herd. [*]

I INTRODUCTION

Projected increases in the numbers and proportion of older people [1] and an increasingly complex legal environment for later life decision making suggest that many older people in Australia will need specialised legal advice in later life. This trend is occurring in the context of similar socio-legal conditions in North America and Britain [2] . The complex legal environment is an outcome of an increased policy emphasis on planning for future income and well being in older age [3] , increased longevity which raises issues of substitute decision making in later life, and a developing interest in older people as a market for a range of accommodation options.

While older clients may seek legal advice for a wide range of issues [4] , there are three areas of the law that have particular significance for older people. These relate to substitute decision making, care arrangements and accommodation choices. If older people are to plan effectively for the future, to make informed choices about financial, health care and accommodation matters, and to be in a knowledgeable position to review and monitor arrangements, they will need to understand and interact with a complex array of legal provisions.

The increasing numbers and proportions of older people living to advanced old age has meant that the number of people with cognitive impairment and consequent decision making disabilities will increase as will the number of older people with other disabilities [1] . Many older people have a substantial asset base primarily in the form of home ownership [5] and will need to make judicious decisions about the management of their assets in the event of incapacity. State governments across Australia have sought to protect older people and their families by formalising substitute decision making through enduring power of attorney legislation [6] . Every Australian jurisdiction now provides for special, enduring powers of attorney which outlast the principal’s or donor’s incapacity [7] . The advantages of this device are seen to be limited formality, little cost and its private nature [7] . A major problem is that it is open to abuse [7] [8] [9] .

Financial abuse is an increasingly recognised form of elder abuse, with family members most likely to be the perpetrators [10] . The most frequently cited Australian study on elder abuse [11] reports the incidence of financial abuse as 1.1% of a large sample of community based patients of a geriatric and rehabilitation centre in New South Wales. In this environment older people need legal advice regarding the choices, protective mechanisms and responsibilities involved in later life planning. At the Queensland State level, the Powers of Attorney Act 1998 (Qld) impacts on a range of areas important to older people, including future planning for substitute decision making regarding financial and personal/health matters. The Guardianship and Administration Act 2000 (Qld) provides for assistance and protection for adults with impaired decision making capacity in areas of personal and financial matters. The latter more public arrangement is generally viewed as a late or last resort option [8] .

Legislative reform embodied in the Aged Care Act 1997 (Cth) aims to increase quality of care for older people in aged care facilities. These reforms have included an agreement signed at the time of entry and a complex system of fees and charges to be negotiated at that time. In addition, there is now a broad range of accommodation options available to older people that include a wide array of financial and tenancy arrangements. In Queensland the Retirement Villages Act 1999 (Qld) replaced the 1988 Act [12] and incorporates a number of key reforms designed to strengthen the rights of older people in this form of housing.

Lawyers play a crucial role in protecting the interests of older people and assisting them to make informed choices regarding substitute decision making, accommodation and health care. Lawyers can also play a key role of monitoring EPAs to pick up cases of abuse [7] . However, few legal practitioners specialise in the rights of clients in residential care, community care or in situations relating to guardianship [13] . A number of challenges have been identified in legal practice with older clients. Lawyers may experience difficulty with ethical issues such as identifying whether the client is the older person and/or their family [14] , confidentiality [15] , determining capacity [16] [17] , and equitable resolution of family disagreements [18] . Detailed knowledge of the law may also be an issue given the lack of specialisation in these areas of law.

Effective communication between legal practitioners and older people is also essential in late life planning [19] . Hobbs and Hobbs [18] argue that legal professionals need to be sensitive to an older person’s context (family, structural arrangements and individual characteristics), able to ensure their participation in the decision making process, and take an empowerment approach in their interaction with older clients. However, effective communication and sensitivity to complex client situations may be hampered by ageist attitudes and organisational pressures arising from appropriate allocations of time to clients, cost effectiveness and management of workloads.

Although legal practitioners can play an important role in protecting the interests of older people, little is known about their knowledge of recent policy and legislative changes and their experiences of working with older people. Even less is known about the experiences that older people have of their encounters with legal practitioners. This paper aims to increase professional understanding of the knowledge and experiences that legal practitioners have in working with older clients in three areas of the law that affect older people in Queensland: the Powers of Attorney Act 1998 (Qld), the Aged Care Act 1997 (Cth) and the Retirement Villages Act 1988 and 1999 (Qld).

Secondly, it seeks to raise professional awareness of the perspectives that older people have of seeking advice from legal practitioners in these areas of the law. Finally the paper will explore the ways in which legal practitioners can build an effective practice with older clients.

II THE RESEARCH PROJECT

This paper is based on a survey of legal practitioners in Queensland and focus groups and interviews with older people and/or their carers. These investigations were part of a larger research program exploring the knowledge, experience and use of powers of attorney, retirement village and aged care legislation by older people and their carers, legal practitioners and aged care practitioners in Queensland [20] .

A Survey of legal practitioners

Legal practitioners with an interest in practice with older people were identified through their participation in a free legal advice phone-in provided in Queensland as part of the International Year of Older Persons in 1999. All 251 legal practitioners on the Queensland Law Society list for the phone in were mailed a survey. The response rate was 54.5% with 137 practitioners from across Queensland responding. A response rate of over 50% is acceptable for a mailed survey.

The respondents included a diversity of legal practitioners in relation to gender, age and experience and the location and size of the practice. Of the 137 respondents, the majority were men (70%); ages ranged from 24 years to 68 years with a mean age of 42 years; and most (69%) practitioners were in small practices of two to five lawyers (41%) or solo (28%) practices. Practitioners from regional and rural towns (61.5%) predominated over Brisbane CBD (17%) and suburban (21.5%) practitioners. Although care should be taken not to generalise the findings to all legal practitioners, the diversity of the sample suggests that respondents do include a broad range of legal practitioners who have an interest in older people.

The completed questionnaires were analysed using descriptive statistics. This is appropriate in an exploratory study attempting to gain an overview of knowledge, experiences and training needs. Open ended questions were analysed qualitatively to identify common themes, differences and individual experiences.

B Focus groups and interviews with older people

The project sought to capture older people’s knowledge, understanding and experiences of the law within three different domains of experience: those living in community settings, those who have moved into aged care facilities and those who lived in retirement villages. The sample comprised 377 older people and/or their families living in metropolitan Brisbane and South West rural Queensland. The data collection for the sample involved 48 focus groups and 29 individual interviews.

A purposive sampling strategy provided a diverse sample of older people across factors of income, gender, cognitive and physical disability, urban/ rural location, Indigenous and culturally diverse background. Only older people with cognitive capacity were included in the focus groups and interviews. The experiences of older people with cognitive disabilities were explored by asking family carers, in focus groups, about their own knowledge and experiences in relation to the three areas of law. Participants were recruited from aged care services, carer organisations, social and activity clubs, professional and service associations, retirement villages and aged care facilities. Women comprised 66% of the community sub sample and 75% of the residential facility sub sample. The majority of participants in the community sample were Australian 9% of participants identifying as Aboriginal and one person identified as a Torres Strait Islander; 9% had migrated from South America and (9%) were from Asia. Within the residential facility sample there was very little cultural diversity and no Indigenous participants.

Focus groups and semi structured interviews were used to gain an in-depth understanding of older people’s perspectives and experiences. These methods appeal to older people as they provide opportunity to be listened to attentively and to tell their story in their own way. They also remove concerns about ‘correct answers’ and dependence on literacy. The opportunity to elaborate on issues and to provide detailed case examples is an advantage over written surveys. Individual interviews were provided for those unwilling or unable to participate in a group.

The focus group and interview data were analysed thematically and associations between common themes and variables of interest explored. The non- probability sampling means that the findings cannot be generalised to wider populations of older people. However, the large sample size, the diversity of the older people included and the quality of the data obtained, provides an in-depth understanding of older people’s knowledge and experiences in these complex areas of legal decision making.

III RESULTS

The results report on the perspectives of both legal practitioners and older people regarding the provision of legal advice in the three areas of interest, knowledge of the relevant areas of law, and practice issues arising from experiences.

A Providing and seeking legal advice

1 Legal practitioners

Older people form a minority of work in most practices even within a sample drawn from practitioners with an expressed interest in working with older people. Over half (58.6%) of respondents estimated that people aged over 60 years comprised 20% or less of their practice clients. There was little difference in estimates of the proportion of older clients across urban/rural locations. Few older clients were estimated to be Indigenous people or people from culturally diverse backgrounds. There was little evidence of specialisation in work with older people.

Respondents were asked to estimate the percentage of older clients who have sought advice in the past six months around the three areas of legislation of interest. Enduring Powers of Attorney (EPAs) were the predominant area for advice giving with practitioners estimating that 79% of older clients had sought advice on some aspect of an EPA. Retirement village contracts (4.3%) and aged care facility agreements (1.8%) were clearly a minor area of practice with older people.

2 Older people

A minority of older people reported having sought legal advice in the three areas of law. Of those participants with EPAs in place (34% of participants in the community sub sample; 73% in the residential sub sample), a minority had made the arrangement in conjunction with advice from a lawyer. Few participants had sought legal advice when entering a retirement village and no participant or family member had sought legal advice when entering an aged care facility.

B Knowledge of relevant legislation

1 Legal practitioners

Figure 1 presents the extent to which legal practitioners rated themselves as knowledgeable in understanding various legal issues relating to older clients. Most respondents rated themselves as highly knowledgeable or knowledgeable about the Powers of Attorney Act 1998 (Qld) (80%) and Advance Health Directives (64%) but were much less sure of their knowledge of the Retirement Villages Act 1988 (Qld) (highly knowledgeable/ knowledgeable 29%) and the Aged Care Act 1997 (Cth) (13%). It should be noted that some practitioners reported they did not advise in the area of the Retirement Villages Act 1988 (Qld) (9%) or the Aged Care Act 1997 (Cth) (15%). There were no significant differences between urban and rural practitioners in relation to their knowledge of the various areas of legislation.

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Current training needs in relation to the legislation were identified by approximately half of the respondents (Table 1). The preferred methods of receiving training were information kits, law society seminars, and telephone conferences. The exploration of practice issues later in this paper suggests additional educational needs.

Table 1: Proportion of respondents indicating current training needs

Legislation
% Indicating current training needs
54
Retirement Villages Act
53
49

2 Older people

The level of knowledge of the law of older people in the sample and their underlying beliefs provide useful insights into reasons older people might not seek legal advice. In summary, understanding of concepts related to substitute decision making was largely limited or low, irrespective of whether participants had an EPA. Overall, knowledge of and interest in Advance Health Directives was extremely low. This is consistent with recent Australian [21] and American studies [22] that report limited take up of written advance directives.

The understanding of legal aspects of entry to an aged care facility was also very low. In community based focus groups understanding of the legal aspect of retirement village entry and residency was minimal; whereas in retirement villages, participants’ understanding of the legal aspects of their tenancy varied according to their particular experiences with entry processes and subsequent experiences of village life. Older people identified formal talks from experts and informal discussion with trusted service providers as the preferred ways of receiving information. A recent study [21] has reported that although a short discussion with a physician and written information increases the uptake of EPAs and Advance Health Directives, most older people prefer informal discussion with family and friends when considering such planning.

Level of income and disability were major factors that influenced level of knowledge and indirectly perceptions of the need to seek legal advice. Those with higher incomes had a higher take up of EPAs, an interest in future planning, belief in the need to protect their assets and a willingness to seek legal advice when necessary. Those with lower incomes and uncomplicated financial arrangements felt that there was little need to protect their assets by having an EPA. Thus, they were less likely to have made EPAs, had not sought legal advice regarding the matter and where they had EPAs in place did not see the need to pursue legal advice regarding ongoing monitoring of these arrangements.

For many participants on lower incomes, a lack of understanding precluded them seeking legal advice. A predominant belief was that a time would present itself to make such arrangements, at the ‘11th Hour’ if necessary, and that family could then handle financial and personal care matters without difficulty. There was little understanding that once capacity was lost, ability to control decisions was also diminished. Of concern was the complete lack of knowledge of the existence of substitute decision making law shown by some groups from culturally diverse backgrounds, some Aboriginal and Torres Strait Islander participants, some older people living in hostels and some residents in rural areas. Older people who are unaware of the existence of legislation are disadvantaged in terms of access to legal information and ability to make informed choices.

Equally concerning was the low level of understanding of substitute decision making law shown by physically frail participants in both community and residential settings, their willingness to cede control over decision making to family and professionals and their lack of awareness of the potential for financial abuse. Participants in aged care facilities did not perceive the resident agreement as an instrument that could assist in the negotiation of their rights in the residential setting. The decisional dependency [23] shown by the majority of physically frail participants precluded their being proactive and seeking independent legal advice in relation to finances and accommodation matters. The interactions of all these factors have implications for professional practice in the area of elder law and are revisited in the conclusion of this paper.

C Practice with older clients: views of practitioners and older people

1 Practitioners

A number of practitioners articulated the positive features of practice with older people, their views on the particular needs of older people, and the practice approaches they had found to be successful.

This area is very important for older people. From a practice perspective it is not very remunerative - more of a community service which we are willing and able to provide.
With older people lawyers need to be patient and switch off the time clock –and keep charges down.
It is my policy to ensure that older clients are completely at ease with their decisions and do not worry.
Lawyers dealing with older people need to be attuned to their requirements. Patience, understanding and kindness are essential when dealing with older people.
The whole process needs to be slowed down when dealing with older people. Older people often feel they are a bother to people, and the lawyer has to ensure their clients don’t feel this way.

Legal practitioners were asked to indicate any difficulties that might occur in relation to practice with older clients. Figure 2 summarises the responses. Over half (58%) reported no difficulty with older clients. Of interest however, is that 40% reported some/ moderate/extreme difficulty with older clients spending time discussing non-legal issues and 55% reporting having had some/moderate/extreme difficulty in knowing where to refer older clients for other information and services. Again it should be noted that the survey sample was a group with a particular expressed interest in older people’s issues.

2002_1101.png

2 Older people

For those older people who had consulted a lawyer, positive interactions outweighed negative ones. These positive experiences were frequently linked to the personal characteristics of the legal practitioner. For example, lawyers were described as ‘very kind’, ‘I could ask him for anything’, and ‘he was like one of the family’. Another appreciated that her legal practitioner had told her ‘anything you need – just ring’.

Participants valued legal practitioners who were good communicators generally and who could communicate about legal terms specifically. For several participants the fact that their legal practitioner came to their home to provide advice on legal matters was important. Overall, the attributes of a good legal practitioner were thought to be: personal qualities of friendliness and warmth, good communication skills, respectful attitudes, expertise that demonstrated value for money and reasonable costs that were known beforehand.

The relatively few older participants who had experienced negative encounters when seeking legal advice reported communication problems, a lack of interest in older people’s specific situations, negative public perceptions of the legal profession and excessive costs as problem areas. In retirement villages, a number of participants regretted not having sought legal advice at the time of entry. All had experienced complications with the resident agreement in relation to differing fees and charges. However, in another group where participants were dissatisfied with the conditions of their contract, all had sought legal advice at the time of entry but in retrospect felt that neither the lawyers consulted nor the facility managers had satisfactorily explained the contract that they signed. The experience of one male participant who had given his lawyer the contract to ‘look over’ before he signed sums up the general view:

It took him 24 hours and all he could say was that everything looked ok and that if I wanted to sign it, it should be fine.

There was a general feeling that the lawyers consulted should have been assessing the document not only for legal soundness but also for how the details of the document would impact on the older person’s everyday life.

D Practice issues in elder law

The open ended questions at the end of the survey of legal practitioners explored in more depth respondents’ perceptions of issues arising in practice with older people. The most common issues arising were: barriers to accessing legal advice, the complexity of family arrangements, time required, costs, issues of determining capacity, and the complexity of the legislation. Barriers identified were mobility and transport, attitudes towards legal advice, language, particular disabilities such as dementia, understanding complex legal documents and processes, and perceived costs.

Practitioners reported considerable difficulty in negotiating complex family dynamics and raised issues of undue influence, changing instructions and some reluctance of family members to take on an attorney role. When family members bring in a client, some practitioners reported difficulties in excluding them from the interview where it may be appropriate. From the perspective of older people, the data show that being treated as the primary person in the process of seeking legal advice and being given the option to keep matters confidential from relatives were important. One older woman was pleased that her legal practitioner and a representative from Centrelink tactfully intervened to ensure that her family did not dominate the discussion:

As my kids probably took over a bit they both noticed I was being over-ruled and they said ‘now this is for your mother’ and pulled me back (in) as the main thing.

In one of the carer groups, a participant expressed concern about the practitioner’s lack of attention to confidentiality when she took her mother to arrange an EPA. She reported that the lawyer conducted the entire proceedings without speaking to her mother alone. She then needed to explain everything to her mother later and was concerned that the practitioner did not ascertain her mother’s wishes in private.

For the majority of older participants from Asia, confidentiality was a serious concern. Although they relied on their children to drive them to their legal practitioner, they did not want them to be privy to the issues raised. It was important to have a lawyer from their own cultural background who could understand concerns of this kind.

A key issue identified by practitioners was the time taken to communicate with older people and to ensure they understood the legal advice or decision. The issue of time was strongly linked to concerns about costs.

the difficulty in charging appropriate fee for time necessarily spent in proper advice and explanation.
I think that I probably end up spending slightly more time with older clients than I would with younger clients because they are generally a bit slower and more chatty and less focused.
Clients with paranoia associated with onset of dementia can take a lot of time.

Areas of particular difficulty were identified as the complexity of current legislation, the need for further explanatory materials, and time taken to read through documents particularly retirement village contracts.

Practitioners identified costs as a major issue. Concerns about fees and charges were linked to an awareness of the limited funds of many older people and the difficulty of receiving appropriate remuneration for the amount of time spent with older clients.

None (difficulties) that I don’t experience with any of my other clients, except that they are more cost-sensitive and must be kept completely informed about charging and any additional work – it is time-consuming explaining the need for additional work.
Cost effectiveness of doing work ie it is less profitable than other areas of law.
Can not charge for the time spent (although spending that time is usually one of the most pleasurable parts of my practice).

The issue of costs of legal services was given significant consideration by older participants. While a small number of participants expressed cynicism about lawyers being overly concerned about making money, most who had sought legal advice reported that costs had not been a major barrier. A number of older people, including those on lower incomes, felt strongly that good legal advice was worth paying for and weighed up the costs against perceived benefits:

You have to pay for expertise in particular areas don’t you?
It’s worth paying to ‘do it properly’.
It was a bit dear but worth it.

Several participants expressed satisfaction with the fees paid despite becoming aware in the focus group that there were variations in the amounts that people had paid for what appeared to be similar services. Some participants also found it frustrating that they did not know how costs were arrived at. Others, however, raised the fear of excessive costs as a general concern in relation to seeking legal advice. For those on fixed incomes, the cost of legal advice was a major consideration.

The need to know costs up front was raised by a significant number of participants in a variety of groups. Participants stated that they would like to be informed at the first contact, usually over the phone, about the estimated costs and many would prefer legal practitioners to discuss the cost up-front, but not necessarily as the first item of conversation. Participants stated that they would appreciate having the opportunity to discuss costs and to negotiate payment of legal costs by instalments over time.

Creyke [24] has suggested a useful further formality to avoid subsequent invalidation of an enduring power of attorney is the attachment of a doctor’s certificate which states that the principal was competent when the document was signed. In the survey some practitioners reported that determining capacity was an area of difficulty and expressed concerns about obtaining appropriate medical advice and negotiating complex family dynamics when arranging an EPA.

My attending on a client over a long period say 10 years and personal observations and considering a lack of capacity against a doctor’s advice that person has capacity.
Determining CAPACITY and this doesn’t always pertain to ‘older clients’.
If any, the issue of mental capacity. There is no easy way for a legal practitioner to determine this properly. A concern may be held but it is difficult to be certain. We can really only suggest that the client see a doctor but that is often resisted by the client or family as being too hard.
There should be some provision for a lawyer to request a medical practitioner to certify that a client is capable of giving and understanding instructions at any one given time.

A quarter of the survey respondents (26%) indicated that they had cases needing the assistance of the Adult Guardian. Of the 31 respondents who had used the Adult Guardian 64% were satisfied with the assistance offered.

IV CONCLUSION

When lawyers and older people come together around a legal issue, there is the potential for both satisfactory and unsatisfactory processes and outcomes for both parties. While it is not possible for professionals to control all the factors that contribute to successful client outcomes, the data from this study indicate that effective practice with older people depends in large part on the depth and breadth of the practitioner’s knowledge of ageing and elder law, an ability to individualise clients and communication skills.

The findings suggest that lawyers’ knowledge should not to be confined to bodies of law, but be broad ranging, taking into account current socio-demographic and policy trends in ageing and the diverse needs and experience of older age. Understanding of socio-demographic trends can assist in both future planning for a practice and outreach to more vulnerable groups. The ageing of the post war immigrant population is proceeding more rapidly than the ageing of the general population and unprecedented ethnic diversity is emerging in older age [25] . This study has shown that some groups of older people from culturally diverse backgrounds and some Indigenous older people are extremely disadvantaged in accessing legal advice by a lack of knowledge of the existence of the law. This highlights the importance of educating informed intermediaries such as ethnic and Indigenous community workers.

Deeply embedded cultural values regarding the care of the aged, appropriate family responsibilities and acceptable private/public arrangements rather than lack of knowledge or access to the law also affects the take up of EPAs and Advance Health directives [26] [9] . Education campaigns and professionals providing services will need to attend to the cultural diversity of the older population.

Older women will continue to outnumber men in older age [1] and are likely to continue to comprise the majority of the population in aged care facilities. Current cohorts of older women generally are unused to the management of financial matters and have shown in this study to rely on others, particularly family members, to handle their affairs without understanding the potential for financial abuse involved. The lack of understanding that older people on lower incomes have of legal concepts associated with substitute decision making precludes their making informed decisions about the management of their affairs in the event of future incapacity. As a follow on, these beliefs suggest to them that seeking legal advice about the possible benefits of making arrangements is not necessary.

Lawyers have a significant role to play in facilitating access to the law for more vulnerable groups of older people whose socio-economic status and/or beliefs do not lead them to readily identify issues as legal issues and to access timely and appropriate advice. A broad based public education campaign is needed to raise awareness among all age groups of the possibility of future incapacity, the value and potential pitfalls of making EPA arrangements and the implications of not making formal arrangements, regardless of level of income and cultural background. There is a need for older people to consider the benefits of balancing family trust with effective monitoring processes, regardless of the size of income and assets.

An education program would need to highlight the potential for abuse of older people, including financial abuse, to increase awareness of the consumer protection provisions within legislation such as the Retirement Villages Act 1999 [Qld] and the need to seek independent advice before signing contracts. Lawyers need to understand that older people seek advice on the meaning that the provisions in a contract would have for the day to day life of residents considering entry to a retirement village in addition to providing advice about the legal soundness of contracts. There is an important educative and advisory role in assisting prospective and current residents of aged care facilities and their families to understand rights issues explicit in resident agreements and the negotiation of rights within a facility. Although current agreements seek to protect older people entering aged care facilities, there is little evidence in this study that they are an effective tool for residents or their families to be apprised of their rights at time of entry or to assert their rights after entry. Lawyers, service providers, older people and their families need more information about the role that lawyers can play in relation to entry to aged care facilities.

The implementation of education strategies for all age groups and older people specifically may have the flow on effect of addressing practice dilemmas associated with time and costs in busy legal practices. A more informed public would mean clientele who engage in legal decision making from a position of strength and the potential for less time needed to explain basis concepts. An American study [22] has demonstrated that a simple educational intervention can significantly increase the completion of durable power of attorney for health care and reduce the need for physicians to spend extensive practice time discussing theses issues.

A major issue to be considered is for lawyers to provide information on costs up front to older clients and to consider staggered payment systems. This would reduce perceived cost barriers to accessing legal advice. More creative approaches to conveying complex information in community education are needed. Theatre, audio-visual materials and strategies which engage older people, such as ‘real life’ case scenarios of situations that affect them are likely to be more successful than brochures and other printed material.

Practitioners have indicated a need for ongoing education in areas of the law specifically relating to older people particularly the Aged Care Act 1997 (Cth) and the Retirement Villages Act 1999 (Qld). Such training should incorporate aspects such as the social and emotional aspects of future planning and decision making, family dynamics and competency. Additionally, lawyers who work in elder law need an understanding of local contact points for referral to services and support networks for older people.

Finally, the personal attributes of a professional cannot be over-estimated. Over and above issues of costs, older people appear to value lawyers who convey genuineness, warmth, and are able to individualise clients and understand their unique circumstances. These personal qualities in conjunction with a broader understanding of ageing issues, innovative community education programs, attention to diversity in older age and specialised knowledge have potential to facilitate informed legal decision making in older age and improved access to legal advice for all older people.

Acknowledgement: We wish to acknowledge the funders for this project: The Queensland Law Society Inc, Department of Families (Queensland), Department of Equity and Fair Trading (Queensland), TriCare, Aged Care Queensland, School of Social Work and Social Policy (The University of Queensland).


[*] Dr Cheryl Tilse, Dr Deborah Setterlund, and A/Prof Jill Wilson are from the School of Social Work and Social Policy at the University of Queensland. Mr Brian Herd is a partner at Carne and Herd Solicitors.

[1] Australian Bureau of Statistics, Older People, Australia: A Social Report (1999) Cat. No. 4109.0.

[2] Gordon Ashton, Elderly People and the Law (1995) 1.

[3] The Hon. Bronwyn Bishop Minister for Aged Care, Commonwealth of Australia, The National Strategy for an Ageing Australia: Independence and Self Provision Discussion Paper (1999).

[4] Sandra McCullough, The Consumer Law Centre of Victoria, Older People and the Law: An Investigation into the Legal and Consumer Needs of Older People in Victoria (1995).

[5] Australian Institute of Health and Welfare and Commonwealth Department of Health and Aged Care, ‘Housing of Older Australians’ in Older Australia at a Glance (1999).

[6] New South Wales Committee on Ageing, Taking Charge: Making Decisions in Later Life (1999).

[7] Robin Creyke, ‘Focusing on Individual Needs: Developing the Law’s Mechanisms for Mentally Disabled and Elderly People’ (1993) 46 International Social Security Review 79.

[8] Terry Carney, ‘Abuse of Enduring Powers of Attorney – Lessons from the Australian Tribunal Experiment? ’ (1999) 18 New Zealand Universities Law Review 481.

[9] Deborah Setterlund, Cheryl Tilse and Jill Wilson. ‘Substitute Decision Making and Older People’ Trends and Issues in Crime and Criminal Justice, no. 139 Australian Institute of Criminology (1999).

[10] Office of the Public Advocate, Safeguarding the Financial Interests of Vulnerable Seniors (1999).

[11] Susan Kurle, Paul Sadler and Ian Cameron, ‘Patterns of Elder Abuse’ (1992) 151 Medical Journal of Australia 673.

[12] The data collection for this study was primarily collected in 1999, thus the findings refer to the knowledge and experiences of the Retirement Villages Act 1988 (Qld).

[13] Wendy Fisher, ‘The Right to be Ninety: Accommodation Issues in Aged Care’, Acting for Older Clients Recent Seminar Papers, Legal and Accounting Management Seminars (1997).

[14] Penny Letts, ‘Advising Elderly Clients’ (1996) 26 Family Law 378.

[15] Burnele Powell and Ronald Link, ‘The Sense of a Client: Confidentiality Issues in Representing the Elderly’ (1994) 62 Fordham Law Review 1197.

[16] Michael Gilfix, ‘Representing the Elderly Client: Problems and Solutions for Attorneys’ (1994) 30(11) Trial 80.

[17] Peter Marguiles, ‘Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity’ (1994) 62 Fordham Law Review 1073.

[18] Steven Hobbs and Fay Wilson Hobbs, ‘The Ethical Management of Assets for Elder Clients: A Context, Role, and Law Approach’ (1994) 2 Fordham Law Review 1411.

[19] Richard Ross and Michael Sullivan, ‘Planning with Clients in Later Life’ (1997) 136(5) Trusts & Estates

[41] .

[20] Deborah Setterlund, Cheryl Tilse and Jill Wilson Legislative Changes in Aged Care: Implications for Older People and their Families, Informed Intermediaries and Legal Practitioners in Queensland (2000).

[21] Julie Mador, ‘Advance Care Planning: Should We Be Discussing It with Our Patients? (2001) 20 Australian Journal on Ageing 89.

[22] Susan Rubin et al, ‘Increasing the Completion of Durable Power of Attorney for Healthcare: A Randomized, Controlled Trial’ (1994) 271 Journal of the American Medical Association 209.

[23] Diane Gibson, Aged Care: Old Problems, New Policies (1998) 199.

[24] Robin Creyke, Commonwealth Department of Human Services and Health, Who Can Decide? Legal Decision-Making for Others (1995) 100.

[25] Donald Rowland ‘Ethnicity and Ageing’ in Allan Borowski, Sol Encel and Elizabeth Ozanne (eds), Ageing and Social Policy in Australia (1997) 75.

[26] Terry Carney ‘Globalisation and Guardianship: Harmonization or (Postmodern) Diversity? ’ (2001) 24 International Journal of Law and Psychiatry 95.


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