A great deal of lip service is given to caring for the elderly in Australian society, but the rubber too infrequently hits the road. In many ways this section of Australian society have found themselves on the outer.
Financially, older people have found it tough, with superannuation amendments disproportionately impacting them. Having largely missed out on the receipt of compulsory employer contributed super in the first place, they were then caught by laws limiting what can be put into super in concessional and non-concessional contributions.
Joined with that have been the worst interest rates on savings for many a generation, directly impacting finances and quality of life.
Yes, we are an ageing population, but we have failed to adequately cater for Australians who are entering the later stages of their lives. Encouraged to stay in their own homes, they discover that accessing promised services is all but impossible. At best you will go on a long waiting list.
The alternative is an aged care facility. What a nightmare, as the Covid-19 pandemic has made all too clear. Underpaid and under-pressure carers, who likely have not the same level of medical expertise as many of their counterparts in other facets of medicine and care.
Meanwhile politicians wring their hands and promise better. But the blame is ours as a society. We have consistently undervalued the elderly and failed in our duty of care owed to them. Ask any lawyer who deals with older Australians and this story is consistent. They are too frequently victims of elder abuse; financial, psychological and physical. Whilst there is rightfully a concentration on broader family and domestic violence, it has often come at the cost of ignoring similar problems experienced by the elderly. What is worse, financial and psychological abuse can be subtle and insidious and difficult to detect.
Increased dementia in the elderly has undoubtedly played a part. Lawyers involved in wills and estate planning see it regularly. As an aside it is very important to get your affairs in order whilst you still enjoy mental competence. However not all do, or are pressured into altering a will, or signing a power of attorney. More and more in this area of legal practice lawyers are confronted with the question of whether an older client has sufficient mental capacity to create or alter legal documents.
There is also sometimes a question over the motive of a relative or family member who is assisting an older person with their testamentary affairs, making it an imperative that clients’ instructions are taken by their lawyer absent other interested parties. It can sometimes become a point of friction with other family members, who in the main are well meaning. But it remains essential practice all the same.
Elder abuse is often characterised as something committed by third party carers. Not only does that do a great disservice to the many dedicated carers in the age care sector, it also overlooks the fact that often family members and relatives are sadly offenders too.
There are also some other common denominators. According to Law Council research and work done by the Australian Law Reform Commission, about 75% of elderly victims have a cognitive impairment. With levels of dementia increasing, the future points to this problem getting worse before it gets better.
In 2015, over 60% of older Australians relied on a pension or government allowance as their primary source of income. Today, if anything, that figure has likely deteriorated.
Add to that the fact that older Australians are often the most digitally excluded, and we have picture of older economically challenged people, often with declining mental faculties, who are alone and unconnected.
What to do is a major issue of public policy for governments and the community to address.
No number of recommendations made by royal commissions, inquiries and law reform commissions is worth a jot if we are not prepared to implement them.
However there are some answers if not to all of this groups problems then at least some of them, and they are based in implementing law reform and using technology.
UNIFORMITY OF LAW
Laws providing for wills and estate planning and powers of attorney are all over the shop in Australia, with different states having different rules. Being in a particular jurisdiction shouldn’t be a lottery as to whether law favours a person who is of older age, yet it is clear that in some jurisdictions the elderly are better off than in others.
An example is the way in which powers of attorney can be brought into existence and whether or not witnesses are required, which in itself can have a deterrent effect on people who would seek to take financial advantage of an older person.
This must obviously change and is currently being worked on by Commonwealth and State Attorneys-General. To have a common approach to law in all of our jurisdictions will obviously be a major benefit for older people.
USE OF TECHNOLOGY
Second, we have technology to use for the betterment of the sector. Companies such as Adelaide start-up WillBits is using encryption and block chain technology to create a tamperproof record of a will, power of attorney and advanced care directive, so the documents can be stored in a searchable central registry and changes to documents can be tracked to a point in time and to a specific author.
No more need to be gathering together bits of paper as wills are changed and superseded, leaving the Executor the unenviable task of working out which is the actual last will and testament.
Attempts to gain financial advantage over an elder by encouraging them to make testamentary changes that might benefit one family member as a beneficiary over another is a lot easier to detect and deter if blockchain is there to record and set out every change.
Worse still can be the misuse and abuse of an enduring power of attorney. The donee empowered by a person to act as their attorney is for all legal purposes acting as if they are that person. It can enable the donee to perform all financial transactions and even to sell real estate that is property of the donor. How much better it would be if other family members concerned were able to see any alteration or creation of a power of attorney by reference to blockchain?
However that in itself requires law reform, as our current probate registries and our laws still have one foot firmly in the 20th century.
ADEQUATE FUNDING OF REQUIRED SERVICES
Lawyers, doctors and allied health practitioners, and banks are often the frontline to dealing with problems experiences by older people. Thus the ability to access a lawyer is critical to a persons ability to get independent and impartial advice. That requires a commitment from governments, because access to lawyers and peoples ability to pay for legal services is a big problem in Australia.
As I have written before, law does not enjoy the sophisticated public and private insurance arrangements that the health industry does, and it shows. So adequate funding of critical legal services can act to prevent a whole lot of pain later on in someone’s life.
A classic example is an older person signing their house over to a family member on the promise of being cared for, only to discover that care is not forthcoming and they have lost their primary asset to boot. In such circumstances legal advice is imperative, whereas to our shame some older people just give up and accept the gravest of injustices.
ACTION NOT TALK
All that said, in 2017 the Australian Law Reform Commission made 43 recommendations in its Elder Abuse—A National Legal Response report, including about aged care, but come the Covid pandemic and it is clear how much work there remains still to do. That report also made clear just the extent that this problem represents to the community. It touches on many aspects of the lives of the elderly, with so many opportunities and points in time when advantage can be taken by the people on whom you would expect the elderly should be able to place their reliance and trust.
Covid is just the latest example of how we have let this group of Australians down. It is a big problem and it is getting bigger. However not enough is advocated on behalf of the elderly and they themselves are not sufficiently organised to always be in a position to influence government policy well enough to make a real difference.
So it is important that we don’t just circle around the issue with endless navel- gazing and actually take some practical steps. Investing in start-ups and related businesses who have ideas and solutions is an obvious and constructive way to allow private enterprise to meet some of the challenges of thrown up by elder abuse. Leaving it to governments alone is never going to work, although they must deliver the necessary legal reform to the sector.
Whilst the difficulties of this area are not confined to the law, law is an important part of it. One is struck however by the fact that the elderly seem unimportant to us until you realise we are all going to end up there, so we may as well start caring, if only out of self interest. As an old client of mine used to say when I was a younger lawyer, ‘the only difference between you and me, son, is I got here first’.
The risk of elder abuse and the challenges of ageing is a problem for all of us. We are all eventually going to get there.
Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.
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