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 are identified as follows:
- 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’.
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 are 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.
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.
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.
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 are 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.
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.
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.
The legal issues of medication misuse which are 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.
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.
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 emphasize 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.
Information and legal advice can also help to ensure that older people are aware of their rights, circumstances and options as well as the services and support they may require to remain in control. As with any legal information delivered outside an interactive advice setting, there will be problems engaging people who do not have a basic level of “legal literacy” on which they can build. The internet could however have the potential to address many of the deficits which we found to exist for older people in accessing “live” legal advice and therefore could enhance the capacity, trust and confidence of older adults in approaching solicitors for legal advice.
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