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Jeff Giddings, Jody Thomas[*]
The concerns and needs of older people should be incorporated into legal education.
It is commonly acknowledged that Australia’s population, in line with most western countries, is growing older.[1] The number of Australians aged 65 and over is set to rise from a current figure of some 2.34 million to 6 million in 2051.[2] This stunning and historically unprecedented demographic shift has profound implications for our social, economic and political frameworks. It raises many social issues which will require the community and the state to continue to rethink the role of older people in society and the means by which all people are to adequately sustain themselves in the later stages of life.
This article begins by outlining some of the most important issues raised by an increasingly older population. These issues include financial independence and access to adequate accommodation, health and legal services. On this basis, the article then examines the consequent need for specialist legal services for older Australians. Finally, the article concludes by outlining current initiatives in the Australian legal education system and the need to incorporate the concerns of older people into law curricula.
Greater political interest is being paid to the particular issues facing older Australians with governments responding to the anticipated impact that our ageing population will have on social and economic planning and policy.[3] However, at present Australia’s legal profession and concomitant legal education system are failing to recognise the legal needs of older people. This failure amounts to a denial of justice for some older people. By comparison, in the United States, where the size of the older persons’ lobby is far greater, the legal profession has been actively addressing these issues with much more success. Some of the American initiatives, including specialist legal services and legal education provide useful information and insight for similar substantive measures in Australia.
The current increase in the older population aged 65 and over both in number and as a proportion of the whole population is unique in history.[4] The United Nations has predicted that by mid-century older people will outnumber the young for the first time ever.[5] The Australian Bureau of Statistics projects that Australia’s population will continue to age such that by 2051, its present size will double, increasing from 12% of the population in 1999 to 24–27% in 2051.[6] This is primarily the outcome of fertility levels remaining low since the end of the ‘baby boom’ and in particular over the last 20 years,[7] accompanied by increases in life expectancy due to medical and lifestyle advances.[8]
Today’s older Australians are better educated and more affluent than previous older generations and represent a predominantly healthy, active group. Nevertheless, they are confronted with a wide range of problems resulting from diverse factors such as moving out of the workforce, unwanted social redundancy and physical or mental impairment.
The continuing retreat from universal welfare provision accentuates the need to prepare the next generation of older people to successfully manage these problems. Financially, the implications of a diminished or minimal earning capacity pose serious difficulties in maintaining adequate accommodation, health and lifestyle needs. Physically, normal frailty associated with an ageing body or more serious conditions such as Alzheimer’s disease are often the precursors to an increased need for assistance with decision making. This can encompass serious end-of-life decisions such as receiving medical treatment and determining the beneficiaries of one’s estate or more everyday concerns such as living arrangements. This is turn increases vulnerability to physical and financial abuse by a range of people including family members, accommodation institutions and a variety of unethical commercial operators. Consequently, older people have specific legal and service requirements.
Australia, at present, appears unprepared to meet the increasing demand for those legal services required by older people. While some in the legal profession have identified these unmet needs, there appears to be only limited recognition of the responsibility to tailor legal services to meeting the legal and social needs of older people.
Traditionally, the problems of access to justice are discussed in terms of groups including women, Indigenous people, young people and the intellectually disabled, with older people receiving limited attention. The report, Access to Justice: An Action Plan, prepared in 1994 by the Access to Justice Advisory Committee chaired by Ronald Sackville, contains only very limited references to older Australians as a disadvantaged group. Likewise, the Justice Statement prepared by the Keating Labor government in 1995 in response to the Access to Justice report accords only limited attention to older Australians.[9]
Despite this exclusion, older people are at least as vulnerable as these other groups. In many cases older people have multiple disadvantages. For example, access issues relating to women, who comprise a disproportionately higher number of older Australians, are exacerbated by age-specific problems such as limited financial resources, physical frailty, incapacity and abuse.[10] Most people aged 65 and over receive or are dependent on government income support payments or sources other than wages for most of their income.[11] Many older people live on meagre incomes or social security payments and do not have the resources to access legal services. Legal aid commissions provide non–means-tested legal assistance in relation to Veterans Affairs matters.[12] This is a social justice initiative based on a recognised need to ensure equity of access to legal services, with a view to enabling older veterans to live independently with a community of support.[13] However, all older people share the identified needs of older veterans, and this assistance is limited to veterans’ pension entitlement matters.
Personal and psychological barriers often prevent vulnerable people from seeking legal services.[14] For example, there is a tendency for older people to defer to other family members and, in some situations, such deference can see the older person’s interests compromised and can also give rise to elder abuse.[15] Another problem is that faced by widowed women who have traditionally left legal and financial considerations to their husbands. Many older people do not understand their rights, what legal avenues of redress are available to them, or the kinds of alternative assistance that are offered.
Even when older people do in fact possess the resources, the legal profession is ill equipped to deliver relevant and complete services. Because the community at large, as well as the legal profession, does not promote the need for specialist training or services catering for older people, some older people may not demand or seek legal services. Studies have shown that many older clients who do seek legal assistance are dissatisfied with legal services citing ‘lack of attention, wrong information, use of legal jargon and being rushed’ as key concerns.[16] These concerns reflect a lack of professional understanding of the older clientele and their service needs, which exacerbates financial and social barriers and contributes to a lack of access to justice for many older people.
If Australian legal professionals do not provide relevant services to older clients, this represents a considerable failure, particularly when these clients represent a significant proportion of the population and include some of the most vulnerable in the community. The older person client base ‘translates into business opportunities for lawyers’.[17] As such, a savvy legal profession should be strategically ensuring quality service delivery to a potentially substantial and growing market.[18] Nevertheless, few firms currently offer specialised services to older people. Preparing wills and acting as executors is and has been traditional fare of legal work, and continues to be ‘the predominant breadwinner’ in legal services to older people.[19] However, a basic understanding of these kinds of services is inadequate. Serving the older client requires a great deal more than being capable of drawing up a will, and understanding tax and fiduciary law.
In addition to the commercial opportunities presented by older clients, the legal community also bears a social responsibility to provide efficient, effective and affordable access to justice. This is particularly so where denial of access can dramatically impact on the quality of life of so many people. This suggests the need for lawyers to consider how legal remedies can be used to assist older people to deal with the concerns they face.
The Queensland Law Society (QLS) has outlined the need for lawyers to take responsibility for educating older people, carers and family members on their rights and responsibilities.[20] The approach taken by the QLS for service provision to older people reflects the need for access to justice and public service to ‘become institutional priorities’.[21] This necessitates the incorporation of social justice concerns, often requiring lawyers to seek non-traditional legal solutions such as alternative dispute resolution or community services, consider the financial circumstances of older clients, and redefine the normal boundaries of lawyering with a view to protecting the physical and emotional wellbeing of their clients.
Sections of the American legal profession have recognised both the community need for specialist legal advice to the older person and the fact that the sheer numbers of older clients represent a viable market. The legal specialty referred to as ‘elder law’ quickly surfaced in the 1970s in the face of an ageing population where approximately 17.4 million Americans were aged 75 and older.[22] Federal funding for senior citizens programs and legal services was initiated by the Older Americans Act in the early 1970s. The funding ceased at the time of the Reagan administration but the groundwork had been laid.[23] Consequently, older people in America are more likely to have access to tailored legal services delivered by professionals with expertise in addressing their particular legal needs.
There are a number of professional associations in America that are continually developing the practice of elder law. The National Academy of Elder Law Attorneys (NAELA) is an association of legal professionals which sponsors an annual symposium, regional seminars, and a referral service. In addition, NAELA provides support to senior citizen organisations and ‘serves as an advocate on public policy issues affecting the elderly’.[24] NAELA is an information network for the large number of ‘elder law attorneys’ and works towards establishing practice standards. The association has just recently opened its membership to international interests.
Furthermore, there is an awareness that cultural changes to professional responsibility must be instigated by existing lawyers educating new lawyers at a professional and curricular level.[25] There are numerous clinical legal education programs in the United States where older people can seek advice from both professionals and law students studying ‘elder law’.[26] For example, the Thomas Cooley Law School hosts one of the best established elder law specialist clinical programs, having operated for over 20 years.[27] This clinical program serves over 1000 clients a year and has several purposes. These include advocacy, legal representation, community education and providing students with an educational experience which demonstrates that, rather than being an esoteric issue, older people’s law is practical and necessary.
The University of Western Sydney offers what is currently the only Elder Law subject in Australia while Griffith University will offer such a course in the second half of 2002.[28] Not only are such courses designed to enable future lawyers to capably represent their older clientele, they also provide future professionals with the insight and awareness needed to design legal and policy responses to an ageing population.[29] The elder law courses offered at dozens of law schools in America may provide a useful starting point for developing programs tailored to Australian settings.
Significantly, many of the American elder law programs offer the material in clinical format. This reflects the need to incorporate considerably more than substantive or ‘black letter’ law. The clinical format strongly advocates ‘learning by doing’ and can provide students with the skills necessary to accommodate the specific needs of the older client. Non-clinical teaching approaches also have much to offer in the elder law area. Seeking to teach students all of the substantive law relevant to older people would be impossible within the confines of a single course or subject. The focus needs to be on sensitising students to the legal needs and concerns of older people, providing them with effective communication skills and an appreciation of the contexts of the legal problems faced by older people.
Unlike typical law genres characterised by doctrinal dichotomy, law and older people is primarily ‘defined by the client to be served’.[30] To serve the elderly client successfully, solicitors undoubtedly need competence in a wide range of substantive law areas. However, the value of that competence will be diminished unless solicitors are also acutely aware of the social, physical and family contexts that impact significantly on older clients. As well, this awareness needs to be translated into effective inter-personal skills. Lawyers need to go beyond reading and dissecting appellate cases and legislation. Effective delivery of legal services to older people requires lawyers to learn more about ageing, refine their communication skills and examine themselves for prejudicial attitudes towards older people.
Law schools need to consider how to provide students with the ability to manage ethical dilemmas regularly raised in these contexts. Understanding who the client is can be of particular importance because the interests and responsibilities of other family members are often inextricably linked to those of the older person.[31] In particular, abuse of older people has become a recognised problem in Australia. It can be either physical or financial or both and often involves family members. Such abuse is difficult to counter because of older people’s reluctance to report and reliance on family members who represent a large proportion of abusers. Abuse is rarely reported for a number of reasons including embarrassment and fear of, or dependency on, abusive family members.[32] Family members often accompany older clients to the lawyer’s office and problems are often ‘perceived as family problems’.[33] Lawyers need to be aware that they may need to address elder abuse issues.
Queensland’s legal fraternity has begun to embrace the need and the opportunity for improving the delivery of legal services tailored to the needs of older people. Queensland has the fastest growing population in Australia and in the 12 months to June 2001 Queensland experienced a growth in the number of people aged 65 years and over that exceeded the national level.[34] One Brisbane law firm, Carne and Herd, has geared its practice to specifically cater for the legal needs of older people. In 2000, the Queensland Law Society hosted an elder abuse forum to examine some of the problems faced by older people and the legal profession’s role in addressing such problems. One of the forum’s recommendations was that elder law issues be introduced into university law curriculum.[35] In response, Griffith University will offer a ‘Law and Older People’ course later this year.[36] The course is designed to address the vacuum that currently exists with particular attention to the importance of elder law practice being client focused.
Assistance was received from several American law schools in preparing the course.[37] The course will cover the requisite substantive areas of law in detail, including age discrimination, powers of attorney and guardianship, financial, health and estate planning as well as the legal regime that governs accommodation — typical fare of American ‘elder law’ courses.
Given the impossibility of teaching all relevant substantive law, there will be a strong focus on sensitising students to the particular legal needs and interests of older people. The course will emphasise that elder law is ‘client’ driven. It begins by looking closely at the older client, examining social, physical and family contexts that impact significantly on the older client. Students will be asked to confront their own attitudes towards older people and how ageist assumptions impact on effective communication with the older client.
Further, it will seek to emulate the benefits of a real client clinical experience by engaging students in class exercises involving client interviewing, advising and mediation. Developing advocacy and oral presentation skills is an integral component of the Griffith law curriculum, but they are of particular importance when considering the family and social contexts of the older client. The course will therefore emphasise the importance of student presentations on relevant legal issues.
In an effort to develop a student’s ability to recognise and source non-legal solutions, the course will take a multi-disciplinary approach to the issues faced by older people. The Griffith course will also make use of insights from the teaching in US law schools of creative problem- solving skills.[38]
Non-legal professional advice is often inextricably linked with the issues of the older client, particularly estate planning. Therefore the course will aim to develop a good understanding of the plethora of private and public organisations that can offer related assistance and services. For example, a lawyer faced with a client considering entering supported accommodation will need to understand the range of accommodation choices available, how the family and social factors of a particular client will impact on the decision, how this will effect the overall, long-term financial plan, and which government services are available to either support the move or possibly, given the above factors, help a person stay at home.
The complexities of dealing with death, dementia, incapacity, client identity, confidentiality, and most pervasively, relational interdependence with other family members all engender many ethical dilemmas. The course will address the issue of euthanasia to highlight ethical dilemmas and to get students thinking about the extent to which decisions they will be involved in may very much be life decisions. The course work will also consider closely the question of ‘elder’ abuse, including the ethical dilemmas faced by an older person’s lawyer and the level of responsibility that both individual solicitors and the wider legal profession has in this regard. For example, new laws in Queensland have improved the workings of powers of attorney and guardianship. However, concerns regarding the potential for abuse remain and lawyers often need to play an important role in protecting the assets of older persons.[39]
The responsibility for providing law students with an understanding of the legal issues faced by older people should not be limited to specific ‘stand alone’ courses. While many lawyers will not specialise in law for older people, all lawyers will at some point in their legal careers engage with an older client. The introduction of explicit older person courses does not limit the scope for universal introduction of the issues, nor should the need for greater awareness be reduced to optional and avoidable classes.[40] It will be some time before law schools unanimously introduce specific courses, and therefore principles and issues specific to older people need to be incorporated into traditional aspects of law school curriculum. Similar approaches have been taken with other socially and legally significant issues such as international law or indigenous concerns.[41] Just as pervasive approaches have been advocated for the teaching of legal ethics and skills, a similar approach could be used in relation to elder law.[42]
The legal issues encountered by older people and their solicitors are extraordinarily diverse, hence the client- centred approach used in specific courses for older people. Within traditional substantive courses there are significant opportunities to incorporate client specific components in order to raise the general awareness of the issues and to teach the procedures, practice and approaches needed to effectively work with older clients. For example, abuse of older people can be raised in the context of wills and powers of attorneys, but also in the areas of trade practices, trusts, property, criminal, and equal opportunity law. Additionally, inclusion of the ethical issues relevant to older clients should be a key component of all professional responsibility courses. If lawyers remain unable to effectively respond to older clients, this compromises the right of older people to ‘have access to high quality legal services or effective dispute resolution mechanisms’.[43]
The legal profession has a unique and integral role to play as Australia begins to embrace the reality of an increasingly older population. Legal professionals need to re-skill and also design and develop services to cater to the increasing number of older people. The legal education system should embrace the opportunity to equip future legal professionals with appropriate skills and an attitude of responsibility and understanding of the older client. The older person’s lawyer needs to be innovative and solve problems creatively, engage a number of different areas of substantive law and professional disciplines whilst managing family and social dynamics. These skills should not be limited to law firms entirely focused on older persons but be an integral part of any lawyer’s toolbox.
[*] Jeff Giddings teaches law at Griffith University. Jody Thomas is a law student at Griffith University.email: j.giddings@mailbox.gu.edu.au© 2002 Jeff Giddings and Jody Thomas
[1] Australian Bureau of Statistics, ‘Population by Age and Sex, Australian States and Territories’, Catalogue No. 3201.0, 2001.
[2] Australian Bureau of Statistics, Income and Welfare: Older Australians, Catalogue No. 1302.0, 1999.
[3] For example reform to the system of publicly provided income support such as mandatory occupational superannuation for all workers, and the tightening of the means test on the age pension: Australian Bureau of Statistics (1999) Population Projections: Our Ageing Population at 1; See also Queensland Department of Local Government and Planning (2001) PIFU Population Trends and Prospects Report citing the projected increase in the aged population as the Queensland Government’s main challenge for effective planning and resourcing in the next 20 years available at http://www.dlgp.qld.gov.au.
[4] Australian Bureau of Statistics, Population Projections 1999-2101 Catalogue No. 3222.0, 2000.
[5] United Nations Population Division Press Briefing, 28 February 2002 at <http://www0.un.org/News/briefings/docs/2002/agebrf.doc.htm> .
[6] See ref 3, above.
[7] Australian Bureau of Statistics, ‘Australia’s Older Population: Past, Present and Future’, Catalogue No. 3101.0, 1999.
[8] Australian Bureau of Statistics, ‘Older People, Australia: A Social Report’, Catalogue No. 4109.0, 1999.
[9] Attorney-General’s Department, ‘The Justice Statement’, Office of Legal Information and Publishing, Canberra, 1995.
[10] Due to longer life expectancies, a higher proportion of those aged 65 and over are women and the trend increases with age. In particular in excess of twice as many women as men comprise the over 85 age group: see Australian Bureau of Statistics, ref 1, above.
[11] Healey, J., ‘Our Ageing Nation’, Issues in Society, pp.3-5, 1999.
[12] See Department of Veterans Affairs at <http://www.dva.gov.au/ pensions/policy/military.htm> .
[13] See The Annual Report of the Repatriation Commission, The Department of Veterans Affairs and the National Treatment Monitoring Committee 1997-98, available at <http://www.dva. gov.au/media/aboutus/annr98/content.htm> .
[14] See Cass, M. and Western, J. ‘Legal Aid and Legal Need’, Commonwealth Legal Aid Commission, 1980.
[15] See Smith, R., ‘Fraud and Financial Abuse of Older Persons’, AIC Trends and Issues in Crime and Criminal Justice, No. 1321999.
[16] Phillips, R., ‘Elder Law: Marketing Legal Services to Older People’, (1996) 70 The Law Institute Journal 30 at 30.
[17] Phillips, R., ref 16, above.
[18] Bergheim, K., ‘Old Issues, New Practice’ (1991) Student Lawyer 31 at 32-3.
[19] Bergheim, K., ref 18, above.
[20] Ordish, C., ‘Elder Abuse — A Consumer’s Perspective’, paper presented at Queensland Law Society: Elder Abuse Forum, available at <http://www.qls.com.au> Queensland Society Media Release, Fraser Coast Alerted to Elder Abuse, 1 Feb 2000.
[21] Rosenberg, J., ‘Adapting Unitary Principles Of Professional Responsibility To Unique Practice Contexts: A Reflective Model For Resolving Ethical Dilemmas In Elder Law’, (2000) 31 Loyola University of Chicago Law Journal 403 at 446.
[22] There has been some discussion as to the transferability of the American term ‘elder law’ into Australia given the common usage of the word elder with specific reference to indigenous older people. It is the view of the authors that ‘law and older people’ is a more appropriate term.
[23] See Bergheim, ref 18, above, p 31.
[24] NAELA can be accessed on <www.naela.com> and has recently opened membership to international professionals.
[25] See generally MacCrate, R., Legal Education and Professional Development — An Educational Continuum , ABA, 1993.
[26] A 2000 survey disclosed that 14 USA law schools have clinical programs specialising in elder law: Mcwhinney, Kate, Survey of Elder Law Clinics, presented at the National Ageing and the Law Conference, 2000.
[27] See <http://www.cooley.edu/clinics/intro60.htm> .
[28] The University of Western Sydney has also established the Research Centre for Elder Law and an Australian Elder Law Journal: see <http://www.uws.edu.au/law/elderlaw> .
[29] Moskowitz, S., ‘Reflecting Reality: Adding Elder Abuse And Neglect To Legal Education, (2001) 47 Loyola Law Review 191 at 204.
[30] National Academy of Elder Law Attorneys, Inc, ‘What is Elder Law’ available at <http://www.naela.com> .
[31] See ref 22, above, p.446.
[32] Quinn, M. and Tomita, S., Elder Abuse and Neglect: Causes, Diagnoses and Intervention Strategies, Springer Publishing, pp. 4-7.
[33] Donaldson, J., ‘Ethical Considerations in Advising and Representing the Elderly’, (1991) 39 Virginia Lawyer 14.
[34] Northern Territory, ACT, and Western Australia also experienced above national levels in growth: see ref 3, above.
[35] Forum papers available on the Queensland Law Society web site at: <http://www.qls.com.au> .
[36] Development of the course was supported with funds provided to Jeff Giddings from the 1999 Australian Awards for University Teaching.
[37] The authors would like to thank Rebecca Morgan, Stetson Law School, Charles P Sabatino, Georgetown University Law Centre; George Cooney, Wayne State University Law School; Illein Klien, Kaptan University; Richard Kaplan, University of Illinois College of Law; Norman Fell and Gary Bauer, Thomas M Cooley Law School; and Kate Mcwhinney, North Carolina College of Law.
[38] Menkel-Meadow, C., ‘To Solve Problems, Not Make Them’, (1993) 46(5) SMU Law Review; Morton, L., ‘Teaching Creative Problem Solving: A Paradigmatic Approach’, (1998) 34 California Western Law Review 375.
[39] Herd, B., ‘Elder Abuse: Where Does the Law Stand’, paper presented at Queensland Law Society Elder Abuse Forum, 1999, available at <http://www.qls.com.au> .
[40] See ref 29, above, p.191.
[41] Spurgeon, E.D. and Mustard, E.J., ‘Elder Law Across the Curriculum Upper-Level Courses Integrating Tax And Elder Law Into Elder Law And Tax Courses’, (2001) 30 Stetson Law Review 1375 at 1375.
[42] See Rhode, D., Professional Responsibility: Ethics by the Pervasive Method, 1994, Little, Brown, Boston, and Menkel-Meadow, C. and Sander, R., ‘The Infusion Method at UCLA: Teaching Ethics Pervasively’, (1995) 58(3 & 4) Law and Contemporary Problems 129. See also Rosenberg, ref 22, above.
[43] Access to Justice Advisory Committee, Access to Justice — An Action Plan, 1994.
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