Elder Law Review
Welcome to Volume 2 of The Elder Law Review.
We are sure that everyone – lawyers, academics, government, aged care representatives and seniors themselves - will find something of interest in this volume.
Three distinguished academics offer some scholarly reflections on our theme: Care and Accommodation Agreements. These agreements will be of increasing prevalence and relevance as the ‘baby boomer’ generation approaches older age. But do seniors understand the significance and implications of these agreements? Are they vulnerable to the assistance of family and the advice of lawyers who may be no wiser? And who will safeguard the interests of those seniors who lack the very capacity to enter into such agreements?
Terry Carney’s contribution is a timely re-appraisal of the Australian tribunal model of adult guardianship. The appointment of a guardian (or operation of an enduring document by an attorney) are the means by which agreements may be made on behalf of elderly people who no longer have capacity. Will the very successful Australian model of guardianship ‘survive future challenges, or is it time for a new experiment?’ What will be the impact of Neoliberalism, changing demographics, cultural values and increasing demands for state accountability to citizens?
At the other end of the spectrum, private care agreements that transfer property to a friend or family member on the provision of care and support in the elder person’s home almost always involve oral, informal promises. Such agreements pose dangers to both seniors and care givers. Margaret Hall suggests that they also raise special questions for lawyers who may not realise that it is a care agreement that underlies apparent ‘gifts’ from seniors. Could legislation provide a flexible approach to these informal agreements, empowering courts to set them aside or vary their terms?
Bill Atkin provides a wide-ranging New Zealand perspective on accommodation agreements with the elderly. Notwithstanding the special vulnerabilities often experienced by elderly people, the courts have tended to uphold traditional principles of freedom of contract. Retirement village agreements, however, seem to be the exception. Legislation currently under consideration grants residents a ‘cooling off’ period during which they can withdraw from an agreement without explanation. But why is such protection not afforded the frail elderly who occupy ‘old people’s homes’ and who are likely to face greater risk? The contrast is stark and the author maintains the possibility of exploitation should be tackled.
And Justice Michael Kirby of the High Court of Australia reviews the edited work of Darzin, Molloy and Strang, Who Can Decide? The Six Step Capacity Assessment Process.
There is also our News feature where you can catch up on new Queensland legislation confronting the problem of elder abuse and family violence; the recent partnership between COTA and National Seniors that creates the largest seniors organisation in Australia; and Queensland legislation which addresses the residential needs of older persons with limited finances.
And in our Comment section the NSW Public Trustee offers a useful overview of the services it provides to seniors and takes us through some of the important issues raised by retirement village and aged care facilities agreements.