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Executive Summary
Background
Faced with an ageing population, State and Federal Governments have acknowledged the need to implement strategies to address the diverse needs of older people in the community. However, there has been little research or specific attention to their access to justice and legal needs. The importance of addressing the legal needs of older people is underscored by the fact that older people are identified as a group who are socially and economically disadvantaged.
Aim and methodology
The aim of the present study was to identify the particular legal issues which often confront older people in New South Wales (NSW). It looked at the particular barriers confronted by older people in accessing services to resolve legal issues, including any attitudinal barriers.
The report is based on:
- an extensive literature review
- interviews with a range of individuals and organisations with an interest in elder law, including community organisations, government bodies, government service providers, community legal centres, private legal practitioners and academics
- nine focus-group discussions involving 78 participants, including both older men and women, older people from urban, regional and rural locations, older people in different accommodation arrangements, and carers
- 135 individual written or telephone submissions from older people
- participation in relevant conferences and forums relating to ageing and older people.
Legal Services
Many of the obstacles for older people in accessing legal services reflect characteristics of the current cohort of older people, including a lack of awareness of their legal rights, a lack of confidence in enforcing those rights, a reluctance to take legal action, and a perception that the law is disempowering and cannot solve their problems.
General barriers relating to the ability to access legal information and advice services which were identified during this research include:
- technological barriers, particularly for telephone and web based services
- a lack of awareness of where to obtain legal information and assistance
- a lack of appropriately communicated legal information
- the high cost of legal services
- a lack of interest by some legal practitioners in older clients
- potential conflict of interests when legal practitioners for older people are arranged by family members.
Barriers for older people in accessing existing legal services which were identified during the research include:
- difficulties in accessing legal aid, including restrictive eligibility tests
- a lack of availability of legal aid for civil disputes
- lack of specialised legal services for older people, particularly in rural, regional and remote areas
- lack of resources in community legal centres to tailor their services to the needs of older people.
Older people's needs in terms of legal service delivery include:
- legal information that is clear and readily accessible — preferably through face-to-face contact
- 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'.
Many service providers and older people alike expressed the view that there was a gap in service provision to older people, particularly to older people who cannot afford private solicitors.
Accommodation related legal issues for older people
Legal issues for older people relating to accommodation and housing reflect the distinct nature of accommodation and housing options for older people.
Nursing homes and residential aged care facilities
The main areas of concern which were identified include:
- inadequate security of tenure
- complex and confusing contractual and financial arrangements, particularly concerning the transfer of the person's property to the nursing home/facility, the return of bond money, and complex fee structures
- abuse and neglect within the nursing home/residential aged care facility
- inadequate access by residents to medical and care records.
There are three agencies that receive complaints about residential care facilities in NSW: the Commonwealth Aged Care Complaints Resolution Service; the NSW Department of Health, Private Health Care Branch Complaints Team; and the NSW Health Care Complaints Commission (HCCC).
Identified barriers for older people in using the complaints resolution mechanisms include fear of retribution from service providers, and a sense that it is ungrateful to complain.
Consumer advocacy groups play an important role in assisting people in nursing homes and residential aged care facilities to protect their rights. In addition, the NSW Aged Care Rights Service (TARS) was specifically established to provide advocacy and assistance for residents of Commonwealth funded nursing homes and residential aged care facilities in NSW. There are also various agencies that provide a range of information services to residents and prospective residents.
Retirement villages
The main areas of concern which were identified include:
- confusion over the nature of the tenure
- disputes over recurrent charges for residents, departure fees, refund of entry fees on departure, contract provisions, responsibility for damage to premises, and village rules
- village mismanagement, investment risk and financial viability of operators
- disputes over variation or reduction in village services.
The Consumer Trader and Tenancy Tribunal (CTTT) has jurisdiction to resolve disputes between residents and village operators. Self-representation before the CTTT is difficult for many older people. TARS provides a legal advocacy service, a telephone information service and workshops for residents of retirement villages. Other sources of information for residents of retirement villages include the NSW Office of Fair Trading, the It's Your Life Retirement Village Information website,1 the Retirement Villages Residents' Association, and the Council on the Ageing.
Home units under strata title
The main areas of concern which were identified include:
- unscrupulous or ineffective body corporate managing agents
- increases in charges controlled by investor owners
- lack of information/advice services regarding body corporate issues.
The Office of Fair Trading provides a mediation service for disputes related to strata living. If mediation fails, then parties can apply for a decision from an adjudicator and can also appeal that decision to the CTTT.
Public housing tenancy
The main areas of concern include:
- long waiting lists for public housing and rigid eligibility criteria
- delays in carrying out repairs
- problems with neighbours
- unfair lease terminations and increased vulnerability to lease terminations.
Tenants can appeal decisions by the NSW Department of Housing to the NSW Housing Appeals Committee. For complaints regarding a failure by the Department to carry out repairs, a tenant can appeal to the CTTT.
The Combined Pensioners and Superannuants Association of NSW Older Persons Tenants' Service (OPTS) provides advice, advocacy and assistance specifically for older people, on both public and private housing tenancy issues. There are 11 other tenancy advice services in NSW for the general population.
Private tenancy
The main areas of concern which were identified include:
- discrimination by real estate agents
- lack of security of tenure in short term leases and lease terminations
- unreasonable rent increases
- landlords/agents excessively seeking access to premises
- difficulties in getting repairs to premises.
Tenants can apply to the CTTT regarding issues such as rent increases, lease terminations, delays in getting repairs to premises, and complaints about landlords requesting excessive access to premises. Older people who are not granted leave for representation may be considerably disadvantaged. In relation to disputes over rent increases for protected tenancies, the matter can be referred to the NSW Fair Rents Board for determination.
Home ownership
Areas of concern which were identified include neighbour problems, older people who act as guarantor for their adult children, real estate agent scams, abuse of power of attorney resulting in sale of home, and informal family accommodation agreements (i.e. where the older person has transferred the title of their home to a relative in consideration for a promise to provide accommodation and/or care assistance).
Boarders and lodgers
Areas of concern which were identified for older people in boarding house accommodation include:
- lack of legislative protection for occupancy rights resulting in terminations
- prohibitive tariff increases, and inadequate notice for tariff increases
- difficulties in recovering security deposits
- failure by operators to undertake necessary repairs and maintenance
- disputes about boarding house rules
- excessive and intrusive access to residents' rooms by managers
- disputes with other occupants
- disputes over uncollected personal goods following termination of occupancy
- disputes with owners/managers over rent payments.
Where a dispute arises between a boarder/lodger and the owner/manager, there is no access to an independent and informal dispute resolution process that can resolve disputes quickly. Aggrieved residents can only pursue redress through either the Local or Supreme Court.
The Older Persons Tenants' Service and general tenancy advice services are available to assist older residents of boarding houses.
Residential parks
Areas of concern which were identified include:
- denial of rights for residents when a residential park is to be closed
- disputes over fees/charges and park rules
- difficulties for older residents resulting from park managers preventing public service vehicles (e.g. taxis, delivery vehicles, ambulances) from entering residential parks.
Where residents have disputes over park rules, they can apply to their park disputes committee. A resident can apply to the CTTT for an order for compensation for having to relocate due to park closure. However, the delays in the process of obtaining such an order may result in diminished availability of alternative sites in the area.
The Park and Village Service (PAVS) of NSW and the Parks and Village Tenants Association provide information and advice to residents of caravan parks and mobile home estates. Tenancy advice services also provide legal information and advice services to residents.
Health related legal issues
Issues relating to access to health services are more common amongst older people than other age groups. Certain cohort characteristics of older people, such as their reluctance to question, complain and challenge authority, act as barriers to accessing quality health care and in enforcing basic patient rights. These barriers have significant implications for the effectiveness of current complaint and legal mechanisms, where the onus on enforcing rights is placed on the individual.
Advance health care directives
Advance health care directives are written statements regarding a person's instructions as to the type and extent of health care that they wish to receive in the event of losing the capacity to make decisions. In NSW, while these are not supported by legislation, they are strongly persuasive to health care providers and the Guardianship Board. However, barriers for older people in accessing such directives include:
- lack of knowledge of their availability
- the lengthy time involved in planning them
- a reluctance to think about end of life health issues
- difficulties in predicting future circumstances accurately in relation to health issues.
Access to health services
The following consumer issues in relation to health services for older people were identified:
- poor communication and delivery of health services to older people
- the impact of age-based rationing of health care services
- the cost of health services, due to the shift away from bulk billing and the high cost of private health insurance.
Hospital discharge
The following general barriers to effective discharge were identified:
- poor communication and coordination between medical staff, GPs and hospital staff in discharge planning
- lack of community health and welfare services
- lack of accommodation for older patients
- attitudes and expectations of patients and their carers.
Medication misuse
The legal issues of medication misuse which were identified include:
- lack of knowledge and education regarding the use of medication for older people
- lack of knowledge/education and communication with health care providers
- difficulties in obtaining access to medical records.
Available complaint mechanisms for health related issues
The NSW Health Care Complaints Commission (HCCC) provides people with a means of making a complaint about health care practitioners and services. For hospital complaints, there are also delegated employees in many hospitals whose role is to investigate and mediate complaints.
Identified barriers in accessing these complaint mechanisms include:
- responsibility being placed on the consumer to initiate complaints
- the complaints processes are usually individually based, and often fail to uncover organisational or systemic problems.
Available advocacy services for health related issues
The Patient Support Office set up by the HCCC can provide officers who can act as advocates, helping to identify issues of concern, providing information about health rights and providing direct assistance to resolve concerns.
The Combined Pensioners and Supperannuants Association provides advocacy, education and support to older people on medicines and health rights.
Older people and disability
Particular issues identified for older people with disabilities include:
- physical access to facilities
- access to information for people with visual or cognitive impairments
- attitudinal problems amongst service providers, resulting in neither aged services or disability services providing the necessary services
- cost related issues, due to the likelihood that older people who have suffered an earlier onset of disabilities have lower savings.
Financial and consumer related legal issues
Older people face a broad range of financial and consumer issues.
Social Security and Veterans' Pensions
The main areas of concern which were identified include:
- confusion regarding eligibility for the Aged Pension and Veterans' Affairs pensions
- difficulties with the application of income and assets tests
- overpayments and errors in assessment of correct rates for pensions.
Although the Welfare Rights Centre provides advice and assistance about social security entitlements, older people make up a low percentage of their clients. The Veterans Advocacy Service (VAS) of Legal Aid NSW provides free legal advice about rights and entitlements under the Veterans' Entitlements Act 1986 (Cth). Some ex-service organisations and individuals also provide assistance for applicants at the Veterans' Review Board (VRB).
It was noted that few legal and financial advisers are sufficiently familiar with the social security legislation, practice, and appeals process to provide effective assistance to pensioners.
Both social security and veterans' benefit entitlement legislation provide for an appeal process against administrative decisions. The first step in this process is to complain to the original decision-maker for re-consideration, after which a complainant may seek internal review by Centrelink or the Department of Veterans' Affairs (DVA). Decisions by Centrelink can be appealed to the Social Security Appeals Tribunal (SSAT). DVA appeals go to either the Administrative Appeals Tribunal (AAT) or the VRB.
An alternative avenue for complaints on pension matters is the Commonwealth Ombudsman. The Ombudsman cannot override the decisions of agencies or issue directions to agency staff, but can resolve complaints by negotiation.
Superannuation
The Superannuation Complaints Tribunal (SCT) investigates complaints relating to superannuation, annuities and deferred annuities, and retirement savings accounts.
Banking, credit and debt
The main areas of concern identified include:
- difficulties faced by older people in using the new technologies
- credit and debt issues arising from personal loans and credit card purchases.
The Consumer Credit Legal Centre (CCLC) specialises in issues related to consumer credit, banking and debt recovery, and focuses on issues that affect low-income and disadvantaged consumers. Financial counsellors can also assist people who are experiencing financial difficulties relating to credit and debt.
The Banking and Financial Services Ombudsman (BFSO) is a free independent dispute resolution service which considers disputes involving amounts of up to $150 000 between individuals and banks.
The Credit Union Dispute Resolution Centre (CUDRC) is a free service that deals with complaints about credit union services involving claims of up to $100 000.
Investment advice and financial planning
The main areas of concern which were identified include:
- poor access to necessary information to make investment decisions
- lack of experience of some older people in handling financial affairs
- problems arising from acting as guarantor for someone else's loans.
The Centrelink Financial Information Service (FIS) provides free information on financial planning, income and assets tests, and taxation. The Commonwealth Department of Veteran's Affairs Financial Information Service (VAFIS) offers a similar free financial information service. The National Information Centre on Retirement Investments provides a range of leaflets on retirement investment and financial information by telephone.
The Financial Industry Complaints Service Ltd (FICS) provides free assistance to resolve complaints against financial services industry members about life insurance, superannuation, and financial and investment advice.
Insurance Brokers Disputes Ltd (IBD) is a free consumer service that handles complaints on claims of up to $50,000 by consumers against insurance brokers and other financial service-providers (other than insurance companies).
Consumer issues
The main issues identified include:
- complaints about goods and services, including public transport services, health insurance, gas/water/electricity and professional services
- vulnerability of older people to consumer fraud and pushy door-to-door sales people
- concerns regarding the prudential standards of pre-paid funeral schemes.
The NSW Office of Fair Trading (OFT) runs call-centres and provides comprehensive consumer information on its website, including information specifically designed for older people.
The CTTT handles small consumer claims (up to $25,000). In addition, a number of industry based complaints schemes provide an alternative form of resolving consumer complaints for specific industries (e.g. Telecommunications Industry Ombudsman, the Energy and Water Ombudsman of NSW).
Resolving financial and consumer issues
Common features of industry dispute-resolution schemes are that they are free for consumers and generally binding on the service provider. The complexity of the process for lodging complaints varies from body to body. Allowing complaints to be lodged orally and providing staff to facilitate the lodging of complaints helps to improve accessibility.
A common feature of dispute resolution schemes is that potential complainants are required to attempt to resolve the matter directly with the service supplier before approaching the independent body. This may present a psychological barrier for many older people.
Many tribunal procedures require complainants to negotiate on their own behalf. Allowing an older person to be represented in hearings and conciliation may assist in overcoming imbalances in power and in negotiation skills.
Discrimination
In NSW, age-based discrimination is covered in the Anti-Discrimination Act 1977 (NSW). Age discrimination can be direct (i.e. where a person is treated less favourably than others because of their age) or indirect (i.e. where an unreasonable condition is imposed that presents difficulties for older people but not for younger people).
While there is little information available on the prevalence of age discrimination, a number of studies have focussed on age discrimination in employment.
Discrimination in employment
Age discrimination in employment arises in the areas of recruitment, terms and conditions of employment, opportunities for advancement, and dismissal/redundancy. The Anti-Discrimination Board (ADB) reports that many complaints arise from interactions with employment agencies, including:
- employment agencies requiring people to divulge their age
- being told by employment agencies that they were too qualified
- being told that the job would suit a younger person.
Discrimination in the provision of goods and services
Issues of concern which were identified include:
- denial of contracts or loans because of income level or the limited time older people have for repayment
- denial of travel insurance.
Barriers to accessing assistance for discrimination matters
The main barriers to accessing assistance include reluctance to make a complaint, individual disempowerment, ignorance of who to approach for assistance or how to make a complaint, and lack of evidence that the treatment is discriminatory.
Barriers to effective participation in anti-discrimination complaints processes
The main barriers to effective participation in discrimination complaints processes include:
- the system requires an older person to advocate for him/herself
- the reliance on conciliation conferencing means that there is little attention to the objective fairness or legal soundness of agreements between parties
- the power differentials between individual complainants and respondents
- the confidentiality of the substance and outcomes of conciliation limits the development of case law.
Elder abuse
Types of abuse
Elder abuse can include the following:
- financial abuse (e.g. abuse of power of attorney, theft, pressure to change their will or to become guarantors)
- psychological abuse (e.g. social isolation, verbal abuse, treating them like children)
- physical abuse, including violence, physical restraint and neglect
- sexual abuse
- neglect (e.g. inadequate food, shelter, clothing, medical care/assistance, hygiene, medication)
- multiple abuses — different kinds of abuse occurring at the same time or on a continuum within a single relationship of trust.
There is also variation in the nature of the relationships within which abuse of older people may occur, including those with adult children, spouses, other family members, friends, carers or institutions.
Prevalence of elder abuse
There is evidence that elder abuse is under-reported because of a lack of community and professional awareness and understanding of the problem. Other barriers to reporting abuse include:
- ignorance of services which may assist
- isolation of victims, resulting in lack of access to assistance, and continuance of the abuse due to lack of scrutiny
- fear of retribution or of being institutionalised
- shame of being abused by people they should be able to trust, and fear of jeopardising important relationships with family or friends
- health professionals may lack procedures for addressing abuse.
Responding to elder abuse
The most effective responses to elder abuse have been those which focus on empowering the victim and emphasise an interdisciplinary partnership approach between the domestic violence and aged care sectors.
Issues for lawyers
Strategies to assist lawyers in their dealings with older clients who may be victims of abuse include:
- taking older people seriously when they raise the issue of abuse
- ascertaining the true wishes of their older clients, by seeing the older client by themselves and by using interpreters where appropriate
- supporting older people to be medically assessed for legal capacity, as this may forestall future conflicts about their wishes
- understanding the risk factors indicating elder abuse and the legal options for preventing and addressing elder abuse.
Substitute decision-making and end of life issues
The prospect of diminishing capacity associated with ageing may cause many older people to consider options for substitute decision-making for financial and personal/lifestyle matters. Older people may also give greater consideration to will making and issues of estate administration.
Powers of Attorney
An Enduring Power of Attorney (EPOA) enables an older person to pre-arrange substitute decision-making should s/he lose personal capacity. The main barrier identified for accessing EPOAs was a lack of awareness of their existence and function. Some older people also expressed concern regarding the potential for EPOAs to be abused by attorneys. This included fears that:
- an EPOA may be activated on a false representation of incapacity
- an attorney will wrongly take a benefit for him or herself
- an attorney will issue benefits to a third party without authorisation.
The Powers of Attorney Act 2003 (NSW) attempts to address some of these issues and provides for greater review of EPOAs by the Guardianship Tribunal.
Guardianship and Financial Management
Enduring guardianship enables older people to make arrangements for others to make certain decisions regarding personal, health and lifestyle matters on their behalf should they lose the capacity to do so.
The main barriers to accessing enduring guardianship include a lack of knowledge of its availability, and the complex procedure for appointing an enduring guardian.
Where an older person has failed to prearrange substitute decision-making, the Guardianship Tribunal has the power to appoint a guardian or financial manager to make decisions for that person. The following concerns have been expressed regarding this process:
- concerns about mismanagement, delays and fees, and the processes used to assess incapacity
- lack of automatic right of representation before the Guardianship Tribunal, and lack of advocacy services to assist people with the Tribunal
- lack of accessible review mechanisms of Guardianship orders made by the Tribunal.
There is no internal appeal of the Tribunal's decision. Appeals must be lodged either with the Supreme Court of NSW or the Administrative Decisions Tribunal (ADT) of NSW.
Nominee arrangements
There is provision for limited substitute decision-making to assist older people who receive pensions with the management of their financial affairs. Centrelink is able to send social security payments to a nominee, to release information to a nominee, and to accept changes in information from a nominee. As social security is administered by the Commonwealth, Centrelink does not automatically recognise powers of attorney drafted under State legislation.
Wills and Probate
Wills are the most common formal legal mechanism for advance decision-making, permitting people to prepare instructions about the distribution of their assets after their death. Generally, will making is an accessible process, with most older people either having a will or being aware of their basic function.
The complexity of applying for a grant of probate for a deceased's estate presents more difficulties for older people in terms of formality and expense. It was reported that there is insufficient free assistance for probate matters.
Concerns were expressed about the use of lawyers in will making and in applying for the grant of probate, including concerns about potential conflicts of interests for lawyers who advise the testator as well as the family, and about the potential difficulties in locating wills or determining which of a number of wills is valid.
Grandparenting
Identified problems relating to grandparenting include denial of contact and grandparents caring for grandchildren.
Denial of contact
Separation or divorce may result in a grandparent's contact with grandchildren being reduced or denied, particularly if the grandparent is the relative of the parent who is no longer living with the children following the separation. If the grandparents' relationship with their own child becomes strained they may also experience difficulty in having contact with their grandchildren, even if there has been no separation or divorce.
Identified barriers for grandparents taking action in these circumstances include:
- if the dispute is with their own child, they may be reluctant to take any court action, with the fear that the relationship may be permanently damaged
- feeling intimidated by court action or that their role as grandparents will not be respected by the court
- the legal costs associated with seeking orders.
A non-legal process which may assist in resolving these disputes in a cheap and expeditious manner is mediation through Community Justice Centres.
Grandparents caring for grandchildren
Some grandparents have full-time care of their grandchildren, either on the basis of a residence order through the Family Court or a care and protection order through the Children's Court. Grandparents, attempting to obtain a residence or protection order, often find themselves negotiating a very complex area of the law, under both State and Commonwealth jurisdictions.
Identified issues for grandparents seeking assistance from the State Department of Community Services (DoCS) include:
- concerns by grandparents regarding delays by DoCS in investigating cases involving their grandchildren who they consider to be at risk
- DoCS policy of not case-managing children in kinship care with their grandparents is viewed by some to be deficient
- inconsistent responses between DoCS offices to a given situation
- inequitable treatment when compared to foster care arrangements.
Identified problems for grandparents seeking residence or contact orders through the Family Court include:
- high financial cost and/or emotional strain associated with contested family court proceedings
- lack of other support for grandparents who obtain a residence order, when compared to kinship caring arrangements with DoCS.
Conclusion
The most commonly recurring theme throughout this project was that older people are often reluctant to complain about issues affecting them. Given older people's distrust of the legal system, and limitations of the law in addressing their legal problems sufficiently, there is a danger that the legal needs of older people may be largely hidden from legal and non-legal service providers, courts, tribunals, and complaint handling bodies. A specialist legal service for older people could provide a valuable resourcing role for generalist legal services across NSW regarding issues for older people and methods of effective service delivery to older people.