September 25, 2023 • 42 mins
Growing older is a privilege, but let’s face it, our elders are not always treated with the respect they should be. In this episode of Law Matters, Catherine Henry delves into the many areas of elder law with one of the nation’s foremost elder law experts, Rodney Lewis AM.
In this episode you’ll find out:
- The many varied aspects of elder law
- Aged care reform and legal issues surrounding this, including the problem with immunity for aged care providers
- Why we need more experts within elder law in Australia
- What elder abuse is and what legal action is available to you
Disclaimer
While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. You should see a solicitor for complete advice that relates directly to your situation.
For more information:
Download your free copy of Growing Older, an eBook produced by Catherine Henry Lawyers on the common legal issues faced by those aged over 55.
Take a look at our online resources on Elder Law here.
Find out more about the legal support provided to those over 55 by Catherine Henry Lawyers here.
If you have a legal issue and live in regional NSW you can find out more at Catherine Henry Lawyers, or call the team on 1800 874 949.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Catherine Henry (00:01):
Growing older is something that happens to us
all. And those of us who aregrowing older are increasing in
number. Our population isageing, there's a greater demand
on services for those growingolder, including legal services.
And that's why we have a growingarea of law called Elder Law.
Hi, I'm Catherine Henry,principal at Catherine Henry
(00:23):
Lawyers. And in this episode oflaw matters, we're looking at
the aspects of the law thatimpact on those growing older.
There's so much to talk aboutwhen it comes to older people
and their rights from retirementand aged care accommodation to
helping older people withdecision making, and then
funding the whole system and theimplications for the quality of
care.
(00:44):
To talk through the world ofElder Law, I'm very lucky to be
joined today by one of thecountry's foremost Elder Law
experts Rodney Lewis AM. Rodneywas bestowed with an AM earlier
in the year. And the pressaround the time described him as
a trailblazer in this area.Rodney practices as a solicitor
(01:04):
in a Sydney firm called ElderLaw Legal Services. And in
addition to his work as asolicitor, Rodney is a writer,
and he wrote the first legaltext in the country for teachers
and students of Elder Law. Healso taught a course in Elder
Law that was at the time theonly such course taught in
Australian universities. SoRodney, thanks so much for
(01:27):
joining me on Law Matters today.
Rodney Lewis (01:30):
That's a pleasure, Catherine. Thank you.
Catherine Henry (01:32):
So Rodney, can I ask you first to tell us what
is covered in the field of ElderLaw? It seems to me that it's
still a bit of a mystery. Andsome lawyers promote themselves
as practising in Elder Law. Butin reality, what they do is
wills and estates and probatematters. Would you describe that
(01:52):
as Elder Law?
Rodney Lewis (01:54):
Well, I would, it's included in Elder Law, but
Elder Law, if you'll forgive meas I defined it, when I wrote
the book is much broader thanthat. To begin with, there's
policy making in many areas ofElder Law, obviously, the
foremost is probably aged care,coming from the Commonwealth,
(02:15):
but the states and territorieshave various laws. For example,
capacity and delegationlegislation, which leads to
their various civil andadministrative tribunals for
powers of attorney andguardianship appointments. So
that's just one example. Then,of course, there's the
(02:37):
legislation in each of thejurisdictions of Australia and
the Commonwealth, again, justmainly aged care, but the
Privacy Act has some impact onthat, health privacy matters.
Then, of course, there's theissue of promises which are made
(02:59):
and then broken, and which thenfind the promisee and the
promisor on the front steps ofthe local Supreme Court. So
that's a big part of Elder Law.
Catherine Henry (03:11):
You're talking about shared accommodation or
granny flats and those that's...
Rodney Lewis (03:16):
That's certainly one of them. But then there's
promises, for example, I waslooking at some last night.
Promises made by parents totheir adult children the
effective, which is often well,you keep working from dawn to
dusk and beyond, we don't payyou much now. But that's because
(03:40):
by promising to leave you, ormaybe even retire and give you
the family business. Well, ofcourse, then events intervene
and the family business isn'tgiven and the son or the
daughter, then brings a claim inthe Supreme Court. So that's
promises made and promisesbroken and there's an awfully
(04:02):
long list of those if you careto prune the law reports.
Then we've got liability issues.Again, they arise mainly out of
aged care. They involve thingslike pressure wounds, and
restraint and medication error,and they in turn give rise to
(04:26):
the potential for claims forharm and injury. And you would
know that in your practice, ofcourse.
Then there's life and death. AndI actually found that
fascinating when I was writingthe book. The law draws the line
between life and death in manyinstances. And that occurs, for
(04:47):
example, in cases involvingwithdrawal of treatment, where
you might have a close relative,even a mother or a father, a
parent and the children arecalled in to have a family
conference just to say goodbye.
(05:09):
There was a case maybe I thinkabout 12 or so years ago where
in one instance, there was afamily conference at a well
known hospital in Sydney. Andone of the family decided that
her brother was, in fact, notready to have the so called tap
(05:32):
turned off. And she decided thatshe would go to the Supreme
Court, she literally knocked onthe doors of the Supreme Court
on a Sunday, the attendant lether in, the attendant called the
duty judge, and the upshot ofthat was that the duty judge
told the attendant, "Ring theCEO of the hospital, and ask him
(05:54):
or her to be in my court at 9:30tomorrow morning." Now, that's
one example. It's an outstandingone really also of how the law
can work. But life and death,and the court can intervene, of
course, in that kind ofsituation.
Then there's family law, whereyou've got the issue of what are
(06:19):
the rights of grandparents foraccess to their grandchildren?
And often sometimes in relationto protection of the
grandchildren. Blended familiesand will making and in cases
where you might have contendingpeople who want a share of
(06:43):
the... most often, in thesecases, fairly large estates of
the parents, and one of thelawyers comes up with a bright
idea. "Because you are marriedto Mr. So and So, let's bring a
claim in the family court beforehe passes away." That way, you
can establish a very clear claimon part of his estate. So that's
(07:10):
family law.
And marriage, again, elderly menand women who marry, and who may
not have sufficient cognitivecapacity to understand the
nature and effect of whatthey're doing. I've had a couple
of approaches on that line, veryinteresting. And, of course,
(07:33):
very difficult for the familiesconcern. Delegation and
capacity, that's, of course, thefamiliar powers of attorney and
enduring guardianshipappointments and advanced care
directives. Most people nowunderstand at least part of the
way those documents function,giving the authority to make
(07:55):
financial decisions, or evenhealth care, and lifestyle
decisions where the personconcerned, usually many years
later after making thedocuments, has lost their
capacity to make decisions forthemselves.
And finally, of course, there isthe making of wills and the
(08:17):
breaking of wills. And Iincluded that in my book, and I
included that in Elder Law,because without it, there's a
huge chunk of Elder Law thatgoes missing.
Catherine Henry (08:31):
Yes, so an incredibly diverse range of
legal issues and disputes thatgo much further without
denigrating the importance ofwill drafting and probate
applications. But if you are atrue elder lawyer, then there's
a lot of work and a lot ofseparate situations and
(08:54):
interesting, litigious mattersthat can fall within the
discipline. So just in terms ofyour involvement in the area,
you and I have sort of beenpractising as lawyers for some
decades, I think you might havea few more years than me just a
few. But what is it that drewyou to Elder Law? Given the
(09:19):
work,you've not always been apractitioner in Elder Law, and I
understand your wife has been anaged care nurse, but what was
some of the motivations formoving in that direction?
Rodney Lewis (09:32):
Well, I suppose there was a confluence of
events, but slowly moving a bitlike a glacier. I realised in
the late 90s, I was movingtowards an older age and thus
retirement. And I decided that Ihad done most things in law up
(09:55):
to that period of time, and Irealised that I couldn't keep
doing, say commercial law andproperty law, business law, etc.
And of course, wills, estatesand so on. I couldn't keep doing
it all, because as you know, alllawyers now, law changes from
(10:17):
day to day in many, many ways.
So I decided to have a bit of alook around and my conversations
with Noni, my wife, led me tounderstand that all was not well
in the aged care sector. Thiswas in the 90s. So I looked
around on the web and found thatthere were more than 4,000
(10:38):
attorneys in the United Stateswho were practising law, elder
law, doing nothing else. And Ithought, good grief, we're
missing something here inAustralia, we're missing
providing a service. So that wasreally how I became interested.
Also during my conversationswith my wife, Noni, realised
(11:04):
that there was a lot of, shallwe say, harm and injury and a
lot of neglect and the breach ofhuman rights that people who
were in aged care wouldsometimes experience and that to
(11:26):
me was an injustice. And since Ihad already spent decades in
active human rights issues, bothin Australia and in our region,
I thought, this is somethingwhich is right under my nose,
and I haven't been aware of it.So that's why I started to focus
(11:46):
down on it.
Catherine Henry (11:48):
It's interesting, we would be lucky,
I would suggest to have 40 ElderLaw attorneys in the country. So
I know that the US has asignificantly greater
population, but things arecertainly more developed there
seems to me and in Canada aswell.
Rodney Lewis (12:06):
And in the UK.
Catherine Henry (12:07):
And the UK. Yeah, it's interesting. And then
you had an idea, given thatthere was this dearth of
expertise in Elder Law toproduce a text and to create a
course. So that really set youup as one of our leading
experts, as I said in theintroduction. Your book is now
(12:30):
in its third edition, or thethird edition is in progress?
Rodney Lewis (12:35):
Third Edition in progress, yes. I tell myself
that every night.
Catherine Henry (12:41):
It's a big undertaking to be sure. Do you
think just a general questionRodney, do you do you think
Australians care enough aboutour older population related to
that the laws that protect them?
Rodney Lewis (12:55):
I do. I think everybody understands that if
they are lucky, they will reachold age and when they do, their
situation could well be quitedifferent to that which they are
imagining. For example, adultchildren have a habit of moving
(13:16):
away, even interstate oroverseas, so the people who
imagined having their familyaround them for support, don't
have that. I do think that theyare sensitive. Generally, people
I think, are very sensitive tothe stories that have been
coming out of aged care now forquite a...for many years, for
(13:40):
many years.
Indeed, it moved me in about2012, I think it was, the ABC
called me and said, "Can we comedown and interview you about a
particular case or event thathad been reported?" And they did
that. This was an aged carecase. And I can remember
standing on the front lawn. AndI'm pretty sure my recollection
(14:05):
is this was a late lineinterview, which has since moved
on from the ABC. And I thoughtto myself, when I was describing
or my view on that particularincident in aged care, I said,
"What we really need is a RoyalCommission." And I thought to
(14:27):
myself, "Gee, I wonder whether Ishould have that." In any event,
as far as I'm aware, that's thefirst time anyone had called for
a Royal Commission, but I maywell be wrong about that. But
nevertheless, it went onnational television. In other
words, the country was ready forit many years ago.
Catherine Henry (14:47):
Yeah, well, let's turn to aged care. Because
it is a topic and an issue thatwe've heard a lot about in the
media over the course of thelast five years. You talked
about that interview in 2012, Ithink it wasn't until 2018 that
the federal government made thecall for Royal Commission. But
(15:10):
in that period, there'scertainly been a lot of awful
stories in the press leading upto the Royal Commission. And
those stories have continued anddid continue during the life of
the Royal Commission. We had thereport handed down in March. And
the current federal government,the Albanese federal government
campaigned very strongly duringthe election campaign on aged
(15:33):
care. It's taken them a while toget started. But now they've
launched a task force, they'retalking about a new Aged Care
Act. Where are the major issuesin the aged care reform process
and what would you say needsattention first?
Rodney Lewis (15:51):
I always respond because that question has been
bowled up to me several times.And I always respond by saying,
number one, I'm a lawyer. Soincluded in the answer is
obviously funding of the agedcare system, staffing of the
aged care system and upskilling,of course, of the people who
(16:15):
work in it. But they're notreally legal issues, they're
policy issues for thegovernment, and for running
their businesses by the agedcare providers.
When it comes to legal issues,then we look at things like
standards of care and quality ofcare, that's important from a
(16:37):
legal point of view. And I haveto say that it was in a mess. I
had counted, I think, somewherebetween seven and 10 standards
of care in what is the currentAged Care Act, soon to be
replaced. And that, of course,is just if I may use the
(16:59):
expression 'dog's breakfast' fora lawyer who seeks to confine a
standard of care to the providerwho has perhaps failed up in the
way in which the care has beendelivered. Looking at the Aged
Care Act, then there are severalways it is presently approached.
(17:22):
And that kind of approach isreally only being diluted by the
new standards of care. In myview, they're just more and more
confusing when it comes tonarrowing down a standard of
care to which the provider iscommitted by the regulation of
(17:44):
the Aged Care Act.
But what is never stated yet,it's been around for many, many
years, is that in every contractfor services and bear in mind,
as you well know, an aged careprovider must offer a contract
for services to the incomingresident and the same with
(18:08):
homecare. But there is never anythought given to the conditions
which are implied by theAustralian Consumer Law about
quality of service. There arethree sections; reasonable skill
and care, time, timely provisionof services. So it is a mess, it
(18:36):
has been a mess. And I have beentalking myself blue in the face,
as they used to say that theseimplied conditions must be
acknowledged. And that they willmake it much clearer for
everybody; providers, regulator,and also the residents
(18:59):
themselves and their familieswhat the standard of care at its
base really is.
Catherine Henry (19:06):
You're involved in attempts to reform the Aged
Care Act in a way that will bemore protective of rights and
now to set up those rightsclearly in the new legislation.
Do you feel confident that theaged care minister and those
advising her will do what'snecessary to have a good go at
(19:33):
this legislative process?
Rodney Lewis (19:35):
I have been pressing various things that I
think would be useful. But sofar as the department is
concerned and the minister, I'msatisfied that they are genuine
in their efforts to reform thesystem but of course, they've
(19:55):
got parameters to that challengefor them and they are, "What did
the Royal Commission say?"That's the first thing. What is
the policy of the government?Which is the second thing, and
that doesn't necessarily, inevery respect conform to what
the Royal Commission has wanted.And I wouldn't...I mean, I'm not
(20:19):
one who would say the RoyalCommission report is written in
stone and must be followed wordby word. But the main one is
that they have to deal with avery powerful lobby group,
namely the aged care providers.And they will do as will all
(20:41):
businesses, protect their ownposition. And they have been
extremely good at that up to themaking of the 1997 Act, the Aged
Care Act, and will do the samefor the introduction of this new
act, I'm sure they will now havea very strong hand in what the
(21:04):
ultimate outcome is. And we'vehad a pretty good example, just
in the last couple of yearsabout just how strongly aged
care providers are.
Catherine Henry (21:17):
That's in the issue of the introduction of an
immunity to providers regardingthe use of chemical restraints.
Is that what you're referringto?
Rodney Lewis (21:30):
Yes, it is. It's not just chemical restraint.
It's all restraint, so far as Ican tell. But nevertheless, yes,
they introduced at the very end,this was the former government,
at the very end of a bill, whichwas implementing nine measures
(21:52):
coming out of the RoyalCommission. After the Act had
been passed, the ministerthrough somebody else, another
member...
Catherine Henry (22:03):
Kim Wilson.
Rodney Lewis (22:05):
Correct. Thank you. I think we're both onto
this. He obviously approachedthe opposition after the House
of Representatives had passed ameasure to say, "I would
imagine, and look, there's thisother item here and we want to
(22:27):
tack this on to the end of thebill, do you have any problems?"
Well, in the event, there wereno problems about it. And it was
tacked on after the house hadpassed the bill, as I said, but
it was, by leave, that theamendment was accepted by the
speaker. In other words, amajority of the then government
(22:49):
and the then opposition. So itwas added, and it is an immunity
against claims, civil orcriminal arising out of
restrictive practices. And thebill requires, and the Act
requires now because it waspassed, that providers follow
(23:13):
some quite very detailedrequirements before applying
restrictive practices. And ifthey do, says the legislation,
then they shall have immunityagainst criminal charges and
civil claims. Now, that is theprobably the most extraordinary
(23:34):
measure I've ever seen comingout of the Commonwealth. And
I've been in law now 55 yearsnext year. It offers a free kick
in effect to the aged careproviders who are businesses,
commercial businesses, and someof whom are even listed on the
Australian Stock Exchange. Now,I defy you to find me another
(23:56):
piece of legislation where theCommonwealth Government has said
to a whole sector of business,"Don't worry, if you follow our
rules, you can forget about therest." The rest of the law, for
example, the law about unlawful.Unlawful, restrictive practices,
otherwise known as unlawfulimprisonment, the law we get
(24:20):
from the Magna Carta. So theCommonwealth and its ministers
then were blithely sailedthrough centuries of a common
law to please the aged careproviders.
Catherine Henry (24:37):
But some of those, as you say, are publicly
listed companies, some of thoseproviders and are extremely
large. And from a historicalperspective, those big
providers, those bigmultinationals came in to the
aged care sector when thecurrent Act was introduced in
1997. And it was developmentthat has not been well received
(25:06):
by those who call themselvesaged care advocates and
associated with deterioratingstandards. Would you agree with
that?
Rodney Lewis (25:14):
You can't generalise about these things.
You can have provider x, whichmight be on the stock exchange,
or it might not. But they mayhave 10, 20, 30 aged care homes.
Now, if one or two of them arepoorly managed, it's not so
(25:37):
surprising that that mightoccur. Because if you're running
a bank, you can't be absolutelysure that there are branches out
there where people just simplydo what they like. Well, having
said that, the way the branchesof banks are controlled, and the
way that aged care homes, assubsidiaries of the main
(26:01):
provider are managed is prettydifferent, I guess. But
nevertheless, human nature meansthat there will always be
shortcomings, I allow for that.
But what I don't like is thatevery time there is a big
disruption to the nice publicrelations, arrangements that
(26:24):
there are, and there's somedreadful story, which comes out
of the aged care system, it endsby somebody, some politician,
perhaps claiming that "Well, no,we've fixed that problem, and it
will never happen again." Now, Idon't know how many times I've
heard that claim. It'smeaningless. It's not very
(26:46):
smart. It will happen again,because we've got human nature
involved in the aged caresystem. But we're talking about
the most vulnerable people inour community. I mean, that also
is a well worn phrase. But it'strue that people when they take
their place in the aged caresystem, are taking their place
(27:08):
for life. It's a lifetimeagreement for anything but a
tiny percentage, perhaps lessthan 1%, who who return to
either their former life or theyreturn to their family. That's a
very rare event from myexperience. However, having said
(27:30):
that, I have had one shiningexample of a gentleman who was
actually in a locked ward and hejust really didn't deserve to be
there. And I eventually wassuccessful in getting him out
into the community, which makesyou feel really good when you're
able to do those sort of things.
Catherine Henry (27:51):
Rodney, what's the timeframe for the new Act,
given the work that you're doingwith key legal groups? And it is
interesting to me when I readthat the task force set up by
the government doesn't actuallyinclude a lawyer or an aged care
advocate. But as you say, theyare consulting. The government
(28:13):
is consulting and you're workingwith other lawyers. The
Australian lawyers alliance isone group I know that you're
working on the proposed draftbill. Is there a timeframe for
the finalisation of the bill?
Rodney Lewis (28:30):
Yes, there is. The government has announced that
they intend to put thelegislation out for comment, I
think before the end of thisyear, and then it will go
through the parliament in earlynext year. And they plan to have
it commence or passed anyway.But I imagine they really also
(28:53):
mean commenced on the first ofJuly, next year. And so there's
a lot of work to be done betweennow and then, a lot of arguments
to be had, whether or not theaged care residents themselves
and the recipients of care underthe home care, part of it.
(29:16):
Whether or not they prevail withsome of their rights, is another
matter. As as you will know, therights which have been touted
for many years about the agedcare system and touted when
residents enter the aged caresystem being told that they have
got their rights and here's theCharter of Rights and it lists
(29:38):
all sorts of things that wouldbe nice, even in some cases,
rights that we don't have youand me. At one stage there were
such rights. They then werereviewed in about 2018 and cut
down and cut out butnevertheless rights have always
(30:02):
been unenforceable expresslystated by the Aged Care Act
itself. And yet, the departmentand the providers have been
talking about aged care rightssince 1997, or even before
actually, but 1997, when theAged Care Act was introduced,
(30:23):
there are no such rights. If youhave a right and you can't
enforce it, what is its value?
Catherine Henry (30:28):
That 1997 Act, introduced by then Prime
Minister John Howard had inputfrom one of the major providers,
Doug Moran, the late Doug Moran,who owned and operated a
significant number ofresidential aged care
(30:49):
facilities. So let's hope thatthe future is brighter than the
past 20 years, and all of theinquiries that have been held
leading up to the RoyalCommission.
Rodney Lewis (31:01):
All 18 of them, yes.
Catherine Henry (31:03):
18 of them, yes. So there's a lot to talk
about in this area and a lot ofwork to be done. And we know
it's really important thatlawyers who feel strongly about
this area and it brings incommercial law, civil law, from
the point of view ofaccountability for poor
practices and human rights. It'svery important work because as
(31:28):
you've pointed out, we areultimately acting for the most
vulnerable members of oursociety.
Rodney, the final area I'd liketo talk to you about is elder
abuse. It sounds clear, and weshould know what it means. But I
wonder if you can tell us whatis meant by elder abuse? We
often hear the definition that'spromoted by the World Health
(31:52):
Organisation. Can you tell ushow the law can be applied to
address elder abuse in ourcommunity?
Rodney Lewis (32:00):
Well, that's a very good question. And, yes,
well, frankly, I can tell youhow it could be applied. Because
I've been touting a law, whichhelps remedies for elder abuse
to be enforceable for severalyears now. Because there's a big
(32:21):
vacuum in elder abuse in thiscountry, because there are so
few remedies. The only place inthe country where that doesn't
apply is the Australian CapitalTerritory, which actually
introduced into its Crimes Actsome offences which, for
(32:45):
example, including neglect,which mean that there are
serious consequences forbreaches of what we would call
the regime of elder abuse.
However, if you look across theditch to the United States, all
(33:05):
of the states of the UnitedStates have laws, which apply to
elder abuse. Now, some of themthat don't have teeth. But
nevertheless, they've made aninroad into it and provided
funds for research and so on.But unfortunately, in our
(33:27):
country, we don't seem to begetting past the research stage.
I think it's time now torecognise that elder abuse is
something which we can clearlydefine. I mean, as you say,
there's the United Nationsdefinition, which is pretty
(33:48):
general and a little inelegant.But nevertheless, as with most
things in the United Nations,it's a product of reaching an
agreement with dozens and dozensof the United Nations members.
So language and Social Policyand so on, gets mixed up.
But with elder abuse, I wouldthink it's easy for us to
(34:13):
legislate that the attorneysgeneral who have been in my
respectful view been kicking theball down the road and have
continued to do that up untilnow. And so what happens is in
elder abuse, you've got harm andinjury for example, in the aged
(34:35):
care system, harm and injury inthe family setting when there is
abuse by one family member uponone of the elders, the parents,
or both, for that matter.
There are some fairly familiarpatterns of behaviour which one
(34:59):
of our Supreme Court justicesreferred to not so long ago
about elder abuse. And it is avery serious social problem. And
it's getting worse, not better.And that's because as we pass
from year to year, the babyboomers are passing away, the
(35:21):
baby boomers as legend has ithave got a lot of wealth and
that generation, of which I'm apart, and I think you're a part,
it has a vast amount of assets,if you want to start counting
them, and they will need to passto the next generation. And that
(35:43):
is where we have elder abuse asthe sort of the medium between
the two generations, where theconnection between the two
generations does fail. Nowobviously, this is only a
minority that we're talkingabout. But on the other hand, it
can keep our courts right aroundthe country busier than
(36:05):
otherwise they would be.
So elder abuse is all aboutintergenerational conflict. I
regularly see people who willbreak into tears in my office
about the issues that they needto confront with their mother,
their father, their brothers andsisters, usually. It reminds me
(36:29):
of the many family law casesthat I did earlier on in my
career, very much the emotions,which are generated by elder
abuse are really very sad, veryserious, and we need a tool.
One of the main issues is, in myview, respectfully, there are a
(36:53):
lot of people committed todealing with elder abuse. But so
far, what we have been doing inthat space is educating people.
And, unfortunately, where we aslawyers see the really sharp end
(37:14):
of elder abuse, it's when peoplecome in and say, my sister, who
had a power of attorney has nowtransferred mum's house to
herself. What do I do?
Catherine Henry (37:28):
Seems to me that we spend a lot of time
identifying what constituteselder abuse and we need to move
forward where we've moved pastthat stage and we need to as a
profession do something aboutit, because yes, it may well
lock up the courts in disputes,but disputes that need to
(37:49):
happen. Rodney, I think you'verun cases involving elder abuse.
Rodney Lewis (37:56):
Yes.
Catherine Henry (37:57):
Yes. Could you give us an example of one that
you've run recently that willdemonstrate the issues and how
they were dealt with by thecourt?
Rodney Lewis (38:08):
Well, one of the tools that we do have is the
delegation instruments. So theone that I just mentioned, and
I've had two or three of thosecases, involves most often the
unlawful use of, say, a power ofattorney. And if we just talk
(38:35):
about that, I think I've had twoor three over the last 10 years
of these kinds of cases wheresomebody has come to me and
said, just what I mentioned, "Weare a family of four adult
children, mum's on her own nowbecause dad has passed away. And
(38:57):
mum has been really havingmemory problems for two or three
years now. And I only just lastweekend, learnt that the title
to the house has been changedfrom mum to my sister, who's the
attorney under a power ofattorney? What do I do?"
(39:20):
So, in cases like that, youcould take the matter to the
Supreme Court and claim thatthere was a breach of duty by
the attorney. So the claim wouldbe against the attorney from the
mother. But of course, there's aproblem, mum's got a problem
(39:42):
with her memory and probablycannot manage her own affairs.
And that's a phrase that'simportant in this context. And
so, it may be necessary,although there are other ways
but let's just imagine that thatmeans that we need to knock off
the sister who's been playing upwith the power of attorney and
(40:05):
favoured herself to then try andset the situation right.
So that means, or could mean atrip to the guardianship
tribunal, where you would askthe tribunal to review the power
of attorney that mum gave 10years ago when she was fine.
(40:25):
That means also bringing thesister or the daughter into the
tribunal, and there will be ahearing and it would unfold that
the sister had actually favouredherself and breached her duties
as an attorney. So she would bereplaced by the tribunal. And it
(40:46):
may be that one of the othersmight replace her.
And then the other which setabout righting the wrong by
having the title returned to themother's name. And so if you've
got the power of attorney andyou've taken it from the
(41:08):
offender as it were, then it maynot be terribly difficult to do
that. But there are so many thatcan't, or there are so many
barriers to retrieving thestatus quo, as it were, that
it's just out of the questionand may involve many times the
(41:32):
harm and injury that arises fromaged care.
Catherine Henry (41:37):
Thank you so much, Rodney. You do such
important work, and you've beenleading the way. And I just want
to thank you so much for beingavailable today and taking time
out of your busy schedule andtalking to us about the myriad
of issues that arise in thisvery important area of law. So
(41:59):
thanks so much.
Rodney Lewis (42:01):
Oh, that's a pleasure. Thanks very much,
Catherine. Thanks for having me.
Catherine Henry (42:08):
I'm Catherine Henry of Catherine Henry
lawyers. And if you need to talkto someone about the law that
impact on those growing older,please do get in touch. My team
will be able to guide youthrough the process and help you
decide what will be best foryour circumstances. And if
you're enjoying this podcast,make sure you subscribe wherever
(42:29):
you listen to your podcasts tostay up to date with all the
latest episodes. This podcastwas produced by Pod and Pen
Productions.
Growing older is something that happens to us
all. And those of us who aregrowing older are increasing in
number. Our population isageing, there's a greater demand
on services for those growingolder, including legal services.
And that's why we have a growingarea of law called Elder Law.
Hi, I'm Catherine Henry,principal at Catherine Henry
(00:23):
Lawyers. And in this episode oflaw matters, we're looking at
the aspects of the law thatimpact on those growing older.
There's so much to talk aboutwhen it comes to older people
and their rights from retirementand aged care accommodation to
helping older people withdecision making, and then
funding the whole system and theimplications for the quality of
care.
(00:44):
To talk through the world ofElder Law, I'm very lucky to be
joined today by one of thecountry's foremost Elder Law
experts Rodney Lewis AM. Rodneywas bestowed with an AM earlier
in the year. And the pressaround the time described him as
a trailblazer in this area.Rodney practices as a solicitor
(01:04):
in a Sydney firm called ElderLaw Legal Services. And in
addition to his work as asolicitor, Rodney is a writer,
and he wrote the first legaltext in the country for teachers
and students of Elder Law. Healso taught a course in Elder
Law that was at the time theonly such course taught in
Australian universities. SoRodney, thanks so much for
(01:27):
joining me on Law Matters today.
Rodney Lewis (01:30):
That's a pleasure, Catherine. Thank you.
Catherine Henry (01:32):
So Rodney, can I ask you first to tell us what
is covered in the field of ElderLaw? It seems to me that it's
still a bit of a mystery. Andsome lawyers promote themselves
as practising in Elder Law. Butin reality, what they do is
wills and estates and probatematters. Would you describe that
(01:52):
as Elder Law?
Rodney Lewis (01:54):
Well, I would, it's included in Elder Law, but
Elder Law, if you'll forgive meas I defined it, when I wrote
the book is much broader thanthat. To begin with, there's
policy making in many areas ofElder Law, obviously, the
foremost is probably aged care,coming from the Commonwealth,
(02:15):
but the states and territorieshave various laws. For example,
capacity and delegationlegislation, which leads to
their various civil andadministrative tribunals for
powers of attorney andguardianship appointments. So
that's just one example. Then,of course, there's the
(02:37):
legislation in each of thejurisdictions of Australia and
the Commonwealth, again, justmainly aged care, but the
Privacy Act has some impact onthat, health privacy matters.
Then, of course, there's theissue of promises which are made
(02:59):
and then broken, and which thenfind the promisee and the
promisor on the front steps ofthe local Supreme Court. So
that's a big part of Elder Law.
Catherine Henry (03:11):
You're talking about shared accommodation or
granny flats and those that's...
Rodney Lewis (03:16):
That's certainly one of them. But then there's
promises, for example, I waslooking at some last night.
Promises made by parents totheir adult children the
effective, which is often well,you keep working from dawn to
dusk and beyond, we don't payyou much now. But that's because
(03:40):
by promising to leave you, ormaybe even retire and give you
the family business. Well, ofcourse, then events intervene
and the family business isn'tgiven and the son or the
daughter, then brings a claim inthe Supreme Court. So that's
promises made and promisesbroken and there's an awfully
(04:02):
long list of those if you careto prune the law reports.
Then we've got liability issues.Again, they arise mainly out of
aged care. They involve thingslike pressure wounds, and
restraint and medication error,and they in turn give rise to
(04:26):
the potential for claims forharm and injury. And you would
know that in your practice, ofcourse.
Then there's life and death. AndI actually found that
fascinating when I was writingthe book. The law draws the line
between life and death in manyinstances. And that occurs, for
(04:47):
example, in cases involvingwithdrawal of treatment, where
you might have a close relative,even a mother or a father, a
parent and the children arecalled in to have a family
conference just to say goodbye.
(05:09):
There was a case maybe I thinkabout 12 or so years ago where
in one instance, there was afamily conference at a well
known hospital in Sydney. Andone of the family decided that
her brother was, in fact, notready to have the so called tap
(05:32):
turned off. And she decided thatshe would go to the Supreme
Court, she literally knocked onthe doors of the Supreme Court
on a Sunday, the attendant lether in, the attendant called the
duty judge, and the upshot ofthat was that the duty judge
told the attendant, "Ring theCEO of the hospital, and ask him
(05:54):
or her to be in my court at 9:30tomorrow morning." Now, that's
one example. It's an outstandingone really also of how the law
can work. But life and death,and the court can intervene, of
course, in that kind ofsituation.
Then there's family law, whereyou've got the issue of what are
(06:19):
the rights of grandparents foraccess to their grandchildren?
And often sometimes in relationto protection of the
grandchildren. Blended familiesand will making and in cases
where you might have contendingpeople who want a share of
(06:43):
the... most often, in thesecases, fairly large estates of
the parents, and one of thelawyers comes up with a bright
idea. "Because you are marriedto Mr. So and So, let's bring a
claim in the family court beforehe passes away." That way, you
can establish a very clear claimon part of his estate. So that's
(07:10):
family law.
And marriage, again, elderly menand women who marry, and who may
not have sufficient cognitivecapacity to understand the
nature and effect of whatthey're doing. I've had a couple
of approaches on that line, veryinteresting. And, of course,
(07:33):
very difficult for the familiesconcern. Delegation and
capacity, that's, of course, thefamiliar powers of attorney and
enduring guardianshipappointments and advanced care
directives. Most people nowunderstand at least part of the
way those documents function,giving the authority to make
(07:55):
financial decisions, or evenhealth care, and lifestyle
decisions where the personconcerned, usually many years
later after making thedocuments, has lost their
capacity to make decisions forthemselves.
And finally, of course, there isthe making of wills and the
(08:17):
breaking of wills. And Iincluded that in my book, and I
included that in Elder Law,because without it, there's a
huge chunk of Elder Law thatgoes missing.
Catherine Henry (08:31):
Yes, so an incredibly diverse range of
legal issues and disputes thatgo much further without
denigrating the importance ofwill drafting and probate
applications. But if you are atrue elder lawyer, then there's
a lot of work and a lot ofseparate situations and
(08:54):
interesting, litigious mattersthat can fall within the
discipline. So just in terms ofyour involvement in the area,
you and I have sort of beenpractising as lawyers for some
decades, I think you might havea few more years than me just a
few. But what is it that drewyou to Elder Law? Given the
(09:19):
work,you've not always been apractitioner in Elder Law, and I
understand your wife has been anaged care nurse, but what was
some of the motivations formoving in that direction?
Rodney Lewis (09:32):
Well, I suppose there was a confluence of
events, but slowly moving a bitlike a glacier. I realised in
the late 90s, I was movingtowards an older age and thus
retirement. And I decided that Ihad done most things in law up
(09:55):
to that period of time, and Irealised that I couldn't keep
doing, say commercial law andproperty law, business law, etc.
And of course, wills, estatesand so on. I couldn't keep doing
it all, because as you know, alllawyers now, law changes from
(10:17):
day to day in many, many ways.
So I decided to have a bit of alook around and my conversations
with Noni, my wife, led me tounderstand that all was not well
in the aged care sector. Thiswas in the 90s. So I looked
around on the web and found thatthere were more than 4,000
(10:38):
attorneys in the United Stateswho were practising law, elder
law, doing nothing else. And Ithought, good grief, we're
missing something here inAustralia, we're missing
providing a service. So that wasreally how I became interested.
Also during my conversationswith my wife, Noni, realised
(11:04):
that there was a lot of, shallwe say, harm and injury and a
lot of neglect and the breach ofhuman rights that people who
were in aged care wouldsometimes experience and that to
(11:26):
me was an injustice. And since Ihad already spent decades in
active human rights issues, bothin Australia and in our region,
I thought, this is somethingwhich is right under my nose,
and I haven't been aware of it.So that's why I started to focus
(11:46):
down on it.
Catherine Henry (11:48):
It's interesting, we would be lucky,
I would suggest to have 40 ElderLaw attorneys in the country. So
I know that the US has asignificantly greater
population, but things arecertainly more developed there
seems to me and in Canada aswell.
Rodney Lewis (12:06):
And in the UK.
Catherine Henry (12:07):
And the UK. Yeah, it's interesting. And then
you had an idea, given thatthere was this dearth of
expertise in Elder Law toproduce a text and to create a
course. So that really set youup as one of our leading
experts, as I said in theintroduction. Your book is now
(12:30):
in its third edition, or thethird edition is in progress?
Rodney Lewis (12:35):
Third Edition in progress, yes. I tell myself
that every night.
Catherine Henry (12:41):
It's a big undertaking to be sure. Do you
think just a general questionRodney, do you do you think
Australians care enough aboutour older population related to
that the laws that protect them?
Rodney Lewis (12:55):
I do. I think everybody understands that if
they are lucky, they will reachold age and when they do, their
situation could well be quitedifferent to that which they are
imagining. For example, adultchildren have a habit of moving
(13:16):
away, even interstate oroverseas, so the people who
imagined having their familyaround them for support, don't
have that. I do think that theyare sensitive. Generally, people
I think, are very sensitive tothe stories that have been
coming out of aged care now forquite a...for many years, for
(13:40):
many years.
Indeed, it moved me in about2012, I think it was, the ABC
called me and said, "Can we comedown and interview you about a
particular case or event thathad been reported?" And they did
that. This was an aged carecase. And I can remember
standing on the front lawn. AndI'm pretty sure my recollection
(14:05):
is this was a late lineinterview, which has since moved
on from the ABC. And I thoughtto myself, when I was describing
or my view on that particularincident in aged care, I said,
"What we really need is a RoyalCommission." And I thought to
(14:27):
myself, "Gee, I wonder whether Ishould have that." In any event,
as far as I'm aware, that's thefirst time anyone had called for
a Royal Commission, but I maywell be wrong about that. But
nevertheless, it went onnational television. In other
words, the country was ready forit many years ago.
Catherine Henry (14:47):
Yeah, well, let's turn to aged care. Because
it is a topic and an issue thatwe've heard a lot about in the
media over the course of thelast five years. You talked
about that interview in 2012, Ithink it wasn't until 2018 that
the federal government made thecall for Royal Commission. But
(15:10):
in that period, there'scertainly been a lot of awful
stories in the press leading upto the Royal Commission. And
those stories have continued anddid continue during the life of
the Royal Commission. We had thereport handed down in March. And
the current federal government,the Albanese federal government
campaigned very strongly duringthe election campaign on aged
(15:33):
care. It's taken them a while toget started. But now they've
launched a task force, they'retalking about a new Aged Care
Act. Where are the major issuesin the aged care reform process
and what would you say needsattention first?
Rodney Lewis (15:51):
I always respond because that question has been
bowled up to me several times.And I always respond by saying,
number one, I'm a lawyer. Soincluded in the answer is
obviously funding of the agedcare system, staffing of the
aged care system and upskilling,of course, of the people who
(16:15):
work in it. But they're notreally legal issues, they're
policy issues for thegovernment, and for running
their businesses by the agedcare providers.
When it comes to legal issues,then we look at things like
standards of care and quality ofcare, that's important from a
(16:37):
legal point of view. And I haveto say that it was in a mess. I
had counted, I think, somewherebetween seven and 10 standards
of care in what is the currentAged Care Act, soon to be
replaced. And that, of course,is just if I may use the
(16:59):
expression 'dog's breakfast' fora lawyer who seeks to confine a
standard of care to the providerwho has perhaps failed up in the
way in which the care has beendelivered. Looking at the Aged
Care Act, then there are severalways it is presently approached.
(17:22):
And that kind of approach isreally only being diluted by the
new standards of care. In myview, they're just more and more
confusing when it comes tonarrowing down a standard of
care to which the provider iscommitted by the regulation of
(17:44):
the Aged Care Act.
But what is never stated yet,it's been around for many, many
years, is that in every contractfor services and bear in mind,
as you well know, an aged careprovider must offer a contract
for services to the incomingresident and the same with
(18:08):
homecare. But there is never anythought given to the conditions
which are implied by theAustralian Consumer Law about
quality of service. There arethree sections; reasonable skill
and care, time, timely provisionof services. So it is a mess, it
(18:36):
has been a mess. And I have beentalking myself blue in the face,
as they used to say that theseimplied conditions must be
acknowledged. And that they willmake it much clearer for
everybody; providers, regulator,and also the residents
(18:59):
themselves and their familieswhat the standard of care at its
base really is.
Catherine Henry (19:06):
You're involved in attempts to reform the Aged
Care Act in a way that will bemore protective of rights and
now to set up those rightsclearly in the new legislation.
Do you feel confident that theaged care minister and those
advising her will do what'snecessary to have a good go at
(19:33):
this legislative process?
Rodney Lewis (19:35):
I have been pressing various things that I
think would be useful. But sofar as the department is
concerned and the minister, I'msatisfied that they are genuine
in their efforts to reform thesystem but of course, they've
(19:55):
got parameters to that challengefor them and they are, "What did
the Royal Commission say?"That's the first thing. What is
the policy of the government?Which is the second thing, and
that doesn't necessarily, inevery respect conform to what
the Royal Commission has wanted.And I wouldn't...I mean, I'm not
(20:19):
one who would say the RoyalCommission report is written in
stone and must be followed wordby word. But the main one is
that they have to deal with avery powerful lobby group,
namely the aged care providers.And they will do as will all
(20:41):
businesses, protect their ownposition. And they have been
extremely good at that up to themaking of the 1997 Act, the Aged
Care Act, and will do the samefor the introduction of this new
act, I'm sure they will now havea very strong hand in what the
(21:04):
ultimate outcome is. And we'vehad a pretty good example, just
in the last couple of yearsabout just how strongly aged
care providers are.
Catherine Henry (21:17):
That's in the issue of the introduction of an
immunity to providers regardingthe use of chemical restraints.
Is that what you're referringto?
Rodney Lewis (21:30):
Yes, it is. It's not just chemical restraint.
It's all restraint, so far as Ican tell. But nevertheless, yes,
they introduced at the very end,this was the former government,
at the very end of a bill, whichwas implementing nine measures
(21:52):
coming out of the RoyalCommission. After the Act had
been passed, the ministerthrough somebody else, another
member...
Catherine Henry (22:03):
Kim Wilson.
Rodney Lewis (22:05):
Correct. Thank you. I think we're both onto
this. He obviously approachedthe opposition after the House
of Representatives had passed ameasure to say, "I would
imagine, and look, there's thisother item here and we want to
(22:27):
tack this on to the end of thebill, do you have any problems?"
Well, in the event, there wereno problems about it. And it was
tacked on after the house hadpassed the bill, as I said, but
it was, by leave, that theamendment was accepted by the
speaker. In other words, amajority of the then government
(22:49):
and the then opposition. So itwas added, and it is an immunity
against claims, civil orcriminal arising out of
restrictive practices. And thebill requires, and the Act
requires now because it waspassed, that providers follow
(23:13):
some quite very detailedrequirements before applying
restrictive practices. And ifthey do, says the legislation,
then they shall have immunityagainst criminal charges and
civil claims. Now, that is theprobably the most extraordinary
(23:34):
measure I've ever seen comingout of the Commonwealth. And
I've been in law now 55 yearsnext year. It offers a free kick
in effect to the aged careproviders who are businesses,
commercial businesses, and someof whom are even listed on the
Australian Stock Exchange. Now,I defy you to find me another
(23:56):
piece of legislation where theCommonwealth Government has said
to a whole sector of business,"Don't worry, if you follow our
rules, you can forget about therest." The rest of the law, for
example, the law about unlawful.Unlawful, restrictive practices,
otherwise known as unlawfulimprisonment, the law we get
(24:20):
from the Magna Carta. So theCommonwealth and its ministers
then were blithely sailedthrough centuries of a common
law to please the aged careproviders.
Catherine Henry (24:37):
But some of those, as you say, are publicly
listed companies, some of thoseproviders and are extremely
large. And from a historicalperspective, those big
providers, those bigmultinationals came in to the
aged care sector when thecurrent Act was introduced in
1997. And it was developmentthat has not been well received
(25:06):
by those who call themselvesaged care advocates and
associated with deterioratingstandards. Would you agree with
that?
Rodney Lewis (25:14):
You can't generalise about these things.
You can have provider x, whichmight be on the stock exchange,
or it might not. But they mayhave 10, 20, 30 aged care homes.
Now, if one or two of them arepoorly managed, it's not so
(25:37):
surprising that that mightoccur. Because if you're running
a bank, you can't be absolutelysure that there are branches out
there where people just simplydo what they like. Well, having
said that, the way the branchesof banks are controlled, and the
way that aged care homes, assubsidiaries of the main
(26:01):
provider are managed is prettydifferent, I guess. But
nevertheless, human nature meansthat there will always be
shortcomings, I allow for that.
But what I don't like is thatevery time there is a big
disruption to the nice publicrelations, arrangements that
(26:24):
there are, and there's somedreadful story, which comes out
of the aged care system, it endsby somebody, some politician,
perhaps claiming that "Well, no,we've fixed that problem, and it
will never happen again." Now, Idon't know how many times I've
heard that claim. It'smeaningless. It's not very
(26:46):
smart. It will happen again,because we've got human nature
involved in the aged caresystem. But we're talking about
the most vulnerable people inour community. I mean, that also
is a well worn phrase. But it'strue that people when they take
their place in the aged caresystem, are taking their place
(27:08):
for life. It's a lifetimeagreement for anything but a
tiny percentage, perhaps lessthan 1%, who who return to
either their former life or theyreturn to their family. That's a
very rare event from myexperience. However, having said
(27:30):
that, I have had one shiningexample of a gentleman who was
actually in a locked ward and hejust really didn't deserve to be
there. And I eventually wassuccessful in getting him out
into the community, which makesyou feel really good when you're
able to do those sort of things.
Catherine Henry (27:51):
Rodney, what's the timeframe for the new Act,
given the work that you're doingwith key legal groups? And it is
interesting to me when I readthat the task force set up by
the government doesn't actuallyinclude a lawyer or an aged care
advocate. But as you say, theyare consulting. The government
(28:13):
is consulting and you're workingwith other lawyers. The
Australian lawyers alliance isone group I know that you're
working on the proposed draftbill. Is there a timeframe for
the finalisation of the bill?
Rodney Lewis (28:30):
Yes, there is. The government has announced that
they intend to put thelegislation out for comment, I
think before the end of thisyear, and then it will go
through the parliament in earlynext year. And they plan to have
it commence or passed anyway.But I imagine they really also
(28:53):
mean commenced on the first ofJuly, next year. And so there's
a lot of work to be done betweennow and then, a lot of arguments
to be had, whether or not theaged care residents themselves
and the recipients of care underthe home care, part of it.
(29:16):
Whether or not they prevail withsome of their rights, is another
matter. As as you will know, therights which have been touted
for many years about the agedcare system and touted when
residents enter the aged caresystem being told that they have
got their rights and here's theCharter of Rights and it lists
(29:38):
all sorts of things that wouldbe nice, even in some cases,
rights that we don't have youand me. At one stage there were
such rights. They then werereviewed in about 2018 and cut
down and cut out butnevertheless rights have always
(30:02):
been unenforceable expresslystated by the Aged Care Act
itself. And yet, the departmentand the providers have been
talking about aged care rightssince 1997, or even before
actually, but 1997, when theAged Care Act was introduced,
(30:23):
there are no such rights. If youhave a right and you can't
enforce it, what is its value?
Catherine Henry (30:28):
That 1997 Act, introduced by then Prime
Minister John Howard had inputfrom one of the major providers,
Doug Moran, the late Doug Moran,who owned and operated a
significant number ofresidential aged care
(30:49):
facilities. So let's hope thatthe future is brighter than the
past 20 years, and all of theinquiries that have been held
leading up to the RoyalCommission.
Rodney Lewis (31:01):
All 18 of them, yes.
Catherine Henry (31:03):
18 of them, yes. So there's a lot to talk
about in this area and a lot ofwork to be done. And we know
it's really important thatlawyers who feel strongly about
this area and it brings incommercial law, civil law, from
the point of view ofaccountability for poor
practices and human rights. It'svery important work because as
(31:28):
you've pointed out, we areultimately acting for the most
vulnerable members of oursociety.
Rodney, the final area I'd liketo talk to you about is elder
abuse. It sounds clear, and weshould know what it means. But I
wonder if you can tell us whatis meant by elder abuse? We
often hear the definition that'spromoted by the World Health
(31:52):
Organisation. Can you tell ushow the law can be applied to
address elder abuse in ourcommunity?
Rodney Lewis (32:00):
Well, that's a very good question. And, yes,
well, frankly, I can tell youhow it could be applied. Because
I've been touting a law, whichhelps remedies for elder abuse
to be enforceable for severalyears now. Because there's a big
(32:21):
vacuum in elder abuse in thiscountry, because there are so
few remedies. The only place inthe country where that doesn't
apply is the Australian CapitalTerritory, which actually
introduced into its Crimes Actsome offences which, for
(32:45):
example, including neglect,which mean that there are
serious consequences forbreaches of what we would call
the regime of elder abuse.
However, if you look across theditch to the United States, all
(33:05):
of the states of the UnitedStates have laws, which apply to
elder abuse. Now, some of themthat don't have teeth. But
nevertheless, they've made aninroad into it and provided
funds for research and so on.But unfortunately, in our
(33:27):
country, we don't seem to begetting past the research stage.
I think it's time now torecognise that elder abuse is
something which we can clearlydefine. I mean, as you say,
there's the United Nationsdefinition, which is pretty
(33:48):
general and a little inelegant.But nevertheless, as with most
things in the United Nations,it's a product of reaching an
agreement with dozens and dozensof the United Nations members.
So language and Social Policyand so on, gets mixed up.
But with elder abuse, I wouldthink it's easy for us to
(34:13):
legislate that the attorneysgeneral who have been in my
respectful view been kicking theball down the road and have
continued to do that up untilnow. And so what happens is in
elder abuse, you've got harm andinjury for example, in the aged
(34:35):
care system, harm and injury inthe family setting when there is
abuse by one family member uponone of the elders, the parents,
or both, for that matter.
There are some fairly familiarpatterns of behaviour which one
(34:59):
of our Supreme Court justicesreferred to not so long ago
about elder abuse. And it is avery serious social problem. And
it's getting worse, not better.And that's because as we pass
from year to year, the babyboomers are passing away, the
(35:21):
baby boomers as legend has ithave got a lot of wealth and
that generation, of which I'm apart, and I think you're a part,
it has a vast amount of assets,if you want to start counting
them, and they will need to passto the next generation. And that
(35:43):
is where we have elder abuse asthe sort of the medium between
the two generations, where theconnection between the two
generations does fail. Nowobviously, this is only a
minority that we're talkingabout. But on the other hand, it
can keep our courts right aroundthe country busier than
(36:05):
otherwise they would be.
So elder abuse is all aboutintergenerational conflict. I
regularly see people who willbreak into tears in my office
about the issues that they needto confront with their mother,
their father, their brothers andsisters, usually. It reminds me
(36:29):
of the many family law casesthat I did earlier on in my
career, very much the emotions,which are generated by elder
abuse are really very sad, veryserious, and we need a tool.
One of the main issues is, in myview, respectfully, there are a
(36:53):
lot of people committed todealing with elder abuse. But so
far, what we have been doing inthat space is educating people.
And, unfortunately, where we aslawyers see the really sharp end
(37:14):
of elder abuse, it's when peoplecome in and say, my sister, who
had a power of attorney has nowtransferred mum's house to
herself. What do I do?
Catherine Henry (37:28):
Seems to me that we spend a lot of time
identifying what constituteselder abuse and we need to move
forward where we've moved pastthat stage and we need to as a
profession do something aboutit, because yes, it may well
lock up the courts in disputes,but disputes that need to
(37:49):
happen. Rodney, I think you'verun cases involving elder abuse.
Rodney Lewis (37:56):
Yes.
Catherine Henry (37:57):
Yes. Could you give us an example of one that
you've run recently that willdemonstrate the issues and how
they were dealt with by thecourt?
Rodney Lewis (38:08):
Well, one of the tools that we do have is the
delegation instruments. So theone that I just mentioned, and
I've had two or three of thosecases, involves most often the
unlawful use of, say, a power ofattorney. And if we just talk
(38:35):
about that, I think I've had twoor three over the last 10 years
of these kinds of cases wheresomebody has come to me and
said, just what I mentioned, "Weare a family of four adult
children, mum's on her own nowbecause dad has passed away. And
(38:57):
mum has been really havingmemory problems for two or three
years now. And I only just lastweekend, learnt that the title
to the house has been changedfrom mum to my sister, who's the
attorney under a power ofattorney? What do I do?"
(39:20):
So, in cases like that, youcould take the matter to the
Supreme Court and claim thatthere was a breach of duty by
the attorney. So the claim wouldbe against the attorney from the
mother. But of course, there's aproblem, mum's got a problem
(39:42):
with her memory and probablycannot manage her own affairs.
And that's a phrase that'simportant in this context. And
so, it may be necessary,although there are other ways
but let's just imagine that thatmeans that we need to knock off
the sister who's been playing upwith the power of attorney and
(40:05):
favoured herself to then try andset the situation right.
So that means, or could mean atrip to the guardianship
tribunal, where you would askthe tribunal to review the power
of attorney that mum gave 10years ago when she was fine.
(40:25):
That means also bringing thesister or the daughter into the
tribunal, and there will be ahearing and it would unfold that
the sister had actually favouredherself and breached her duties
as an attorney. So she would bereplaced by the tribunal. And it
(40:46):
may be that one of the othersmight replace her.
And then the other which setabout righting the wrong by
having the title returned to themother's name. And so if you've
got the power of attorney andyou've taken it from the
(41:08):
offender as it were, then it maynot be terribly difficult to do
that. But there are so many thatcan't, or there are so many
barriers to retrieving thestatus quo, as it were, that
it's just out of the questionand may involve many times the
(41:32):
harm and injury that arises fromaged care.
Catherine Henry (41:37):
Thank you so much, Rodney. You do such
important work, and you've beenleading the way. And I just want
to thank you so much for beingavailable today and taking time
out of your busy schedule andtalking to us about the myriad
of issues that arise in thisvery important area of law. So
(41:59):
thanks so much.
Rodney Lewis (42:01):
Oh, that's a pleasure. Thanks very much,
Catherine. Thanks for having me.
Catherine Henry (42:08):
I'm Catherine Henry of Catherine Henry
lawyers. And if you need to talkto someone about the law that
impact on those growing older,please do get in touch. My team
will be able to guide youthrough the process and help you
decide what will be best foryour circumstances. And if
you're enjoying this podcast,make sure you subscribe wherever
(42:29):
you listen to your podcasts tostay up to date with all the
latest episodes. This podcastwas produced by Pod and Pen
Productions.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies!
The Breakfast Club
The World's Most Dangerous Morning Show, The Breakfast Club, With DJ Envy, Jess Hilarious, And Charlamagne Tha God!