Editors --- "Editorial" [2008] ElderLawRw 1; (2008) 5 Elder Law Review, Article 1

• EDITORIAL

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EDITORIAL

This volume of the Elder Law Review examines undue influence in relation to older persons. It raises a debate familiar to those working in this field - whether special provision should be made for our older citizens. Are our senior citizens to be characterised as a group that requires special protection? The alternative is to allow the law to have a general application to citizens who are unable to make decisions for themselves or whose decision making capacity is compromised, whatever their age. Margaret Hall’s article “Material Exploitation and the Autonomy Ideal: The Role of Equity Theory in Adult Protection Legislation” examines adult protection legislation in this context and questions whether it can appropriately respond to the needs of older citizens balancing on the one hand autonomy of the individual who has legal capacity and on the other responding to individual vulnerability. The article points to the different approaches adopted on this issue. Adult protection legislation may exclude the vulnerable person who retains mental capacity or it may include a special category of “elderly persons” entitled to protection by reason only of their age.

The undue influence doctrines are but one element in the broader landscape of financial abuse. Financial abuse can take many forms including pressure being brought to bear on the older person to transfer funds or assets or undertake obligations such as acting as guarantor for loans. The problem of identifying what is improper pressure and whether the law should intervene is particularly acute in domestic settings. The older person may feel pressured but ambivalent. There is on the one hand the love, affection and sense of obligation to family to assist and on the other hand, the need for older persons to provide for their own needs and preserve their assets. Margaret Hall argues that equitable principles provide the appropriate model for dealing with “contextual vulnerability”. Equitable doctrines of unconscionability and undue influence provide a framework for consideration of the individual situation of the older person without typecasting the individual as infirm or incapable. Equity doctrines allow an examination of the interplay of vulnerability, economic, social and physical dependence in a domestic situation.

Older citizens may be asked to provide funds for an adult child’s purchase of assets or to support a business. Seniors on pensions may have as their principal asset their home. This may make them especially vulnerable to pressure to take out a reverse mortgage (equity release products). O’Mahony and Devenney in their article “Undue Influence, The Elderly and Equity Release Schemes” explore the protection available under the doctrine of undue influence. Consumer protection legislation may be concerned to ensure that the consumer has adequate information and advice. But this does not address the problem where an older citizen feels pressured to enter into a financial transaction in order to make available funds to a family member or to a person in a close relationship.

Peter Whitehead the Public Trustee of New South Wales provides a very comprehensive review of the response of the Courts and NSW Guardianship Tribunal to cases of financial abuse. Peter concludes that the cases demonstrate that education, proper legal advice, and accessible elder law services are all needed as a right and that further work is required in the areas of mandatory review, notification of the relevant people when the power is to be activated and community and legal education.

Notes from abroad provides us with an insight as to what is happening at the Canadian Centre for Elder Law Studies, which is based within the British Columbia Law Institute in Vancouver. The contributors, Laura Watts and Christopher Bettencourt have highlighted some of their key activities over the last twelve months which include the annual Canadian Conference on Elder Law, and the publication of the inaugural volume of the Canadian Journal on Elder Law. We can also see that the issues facing older persons in Australia are equally reflected within the Canadian context.

Phillip McGowan, an Adjunct Fellow in Elder Law at UWS provides a detailed overview of the Succession Act 2006 NSW which commenced on 1 March 2008. Of particular note, to those who are engaged in the area of substitute decision making, is the introduction of “statutory wills”. Sections 18 to 26 of the Act introduce the power of the court to authorise the making, altering or revocation of a will for a person lacking testamentary capacity. In view of the increasing numbers of older persons with dementia it will be of interest to observe how often these sections are invoked.

The remaining three short articles provide us with an insight into three community legal services that have been implemented to address the legal needs of older persons. The services which are based in Cairns, Sydney and Melbourne demonstrate the different models that each have used when implementing their programs. The reports also provide an overview of the client matters that the legal services address and demonstrate the need for further pro bono legal services to meet the increasingly complex legal issues facing our older persons.