Equality before the Law Bench Book — Section 11 — Older people

The level of education often impacts a person’s ability to understand and access the legal system. This includes their ability to access technology (see further 11.4.1 Barriers — Access to justice).

A person’s earning capacity generally increases with age, however falls sharply after 64 years of age.

Life expectancy for older people is increasing, however with this has come an increase in the expected years of life with medical issues or a disability.

A number of medical and socio-economic conditions may impact on the cognitive ability of an older person, and may be permanent or temporary. Reference should be made to 5.2.5 — Making adjustments for people with disabilities.

Health, income and accommodation can be linked. The sometimes precarious nature of renting in the private rental market, where no social housing is available, has more profound negative impacts on the health and quality of life of older people than the general population.^[38] This is due, in part, to the relatively large amount of time older people spend inside their home. It is especially so for those with a disability (including a disability such as dementia) or other health and mobility issues. Older people have a greater likelihood of ill health, disability, widowhood and living alone, in addition to low incomes. See further 11.1.8 — Accommodation and living arrangements.

Grandparents as parents — Child Care and Protection and the Family Law Act

Coinciding with the increase in family accommodation agreements is an increase in instances of elder financial abuse in relation to family accommodation agreements. In 2016–17 the NSW Elder Abuse Helpline and Resource Unit received 1800 calls, of which 39% were related to financial abuse and 58% were related to psychological abuse, which often co-occurs with financial abuse.^[59] See further 11.2.3 — Succession/financial abuse.

Many older lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) Australians have faced a lifetime of discrimination and abuse and they fear this will continue. There is little data on the LGBTQI community among older people. According to the Census in 2016, there were around 23,700 male same-sex couples and 23,000 female same-sex couples.

Among older Australians, those aged 50 to 69 are significantly more engaged with technology, understand its purpose and potential value. Those aged 70 and over are more digitally disengaged, citing lack of trust, confidence, skills and personal relevance. Older Australians generally use the internet to research about goods they would like to purchase, use internet banking, pay bills online and search for information about government services.^[77]

Generally

There is no comprehensive data available on the prevalence of abuse of people in residential aged care. At 30 June 2020, a total of 189,954 people were using residential aged care (permanent or respite) and 58% of those were aged over 85 years.^[109] Abuse may be committed by paid staff, other residents in residential care settings, or family members or friends.

The 2019-20 Report on the Operation of the Aged Care Act 1997 indicates that during the 2019–2020 financial year there were 5,718 notifications^[110] (5,233 in 2018–2019)^[111] of reportable assaults as previously defined in the Act. Of those, 4,867 (4,443 in 2018–2019) were recorded as alleged or suspected unreasonable use of force, 816 (739 in 2018–2019) as alleged or suspected unlawful sexual contact, and 35 (51 in 2018–2019) as both.^[112] “Reportable assaults” captured a more narrow range of conduct, referring to “unreasonable use of force on a resident, ranging from deliberate and violent physical attacks on residents to the use of unwarranted physical force” and unlawful sexual contact, meaning any sexual contact with residents where there has been no consent”.^[113] Amendments made to the Act by the Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021 now include eight types of conduct as a “reportable incident” (see below) under the Serious Incident Response Scheme (SIRS) which commenced 1 July 2021.

Media focus on cases of abuse by paid staff in residential care facilities has brought this issue to public attention.^[114] The Commonwealth Government announced the terms of reference for the Royal Commission into Aged Care Quality and Safety on 9 October 2018. The Royal Commission delivered its final report of 148 recommendations, which was tabled in the Australian Parliament on 1 March 2021.^[115]

Under the 2021 amendments to the Aged Care Act 1997 (Cth), which introduced the SIRS, s 54-3 was introduced and defined new terms for the reporting of certain incidents.^[116] New ss 54-4 to 54-8 establish protections to ensure disclosers are supported and protected in making disclosures of information. These protections are intended to promote integrity and accountability of approved providers in providing supports and services and to safeguard care recipients.^[117] The definition of a “reportable incident” is far broader than the previous “reportable assault” and includes any of the following incidents that have occurred, or alleged or suspected to have occurred to a residential aged care recipient in connection with the provision of care or flexible care in a residential setting:

“Restrictive practices” in s 54-9 in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient.

New reporting requirements as part of SIRS mean that residential aged care providers will be required to report and manage all serious incidents which impact on the safety and well-being of consumers, with the range of serious incidents that are reportable under SIRS being broader than those under previous compulsory reporting requirements.^[118]

Sexual abuse in residential care

In 2019-20, there was notification of 816 alleged or suspected unlawful sexual contacts occurring in residential aged care facilities across Australia. This amounts to 2.3% of those in permanent residential care.^[119] Reports of sexual assault in aged care settings are often dismissed or not appropriately followed up due to procedural difficulties experienced, particularly where the victim is suffering from a cognitive or communicative impairment, mental illness or physical disability.^[120]

For many older people, domestic violence has been considered a “family matter” in which police would rarely intervene, and has not historically been treated as a criminal offence. Given these preconceived views, and the fact that the Crimes (Domestic and Personal Violence) Act 2007 envisages that AVOs can be made following formal application or as a consequence of a person being charged, older people may be unaware or unwilling to apply for an ADVO or APVO. Like all cases of family violence, the matter may be complicated by fear of losing their home or income, intergenerational violence, and dependency on adult children to provide care.^[121]

Older people may seek protection from family violence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The Justice Legislation Amendment Act (No 3) 2018 amended the Crimes (Domestic and Personal Violence) Act 2007 by inserting s 5A to provide that a personal violence offence by a paid carer against a dependant is treated as a domestic violence offence and an ADVO may be made for the dependant’s protection. However, a personal violence offence committed by a dependant against a paid carer is not a domestic violence offence. The paid carer may still apply for an apprehended personal violence order against the dependant.

Under s 27 of the Act, it is mandatory for police to apply for an ADVO if the police officer suspects or believes that a domestic violence offence or stalking or intimidation offence has been or is likely to be committed. The effect of s 5A is that this continues to be the case where a paid carer is alleged to have committed a domestic violence offence against a dependant, but it will no longer be mandatory where it is alleged that a dependant has committed a domestic violence offence against a paid carer. These amendments commenced 17 December 2018.

The vulnerable witness provision may apply to an older person in APVO and ADVO proceedings if the older person is cognitively impaired. Section 306ZB of the Criminal Procedure Act 1986 (NSW) permits a vulnerable person to give evidence in apprehended violence proceedings by CCTV, unless he or she is the defendant. A “vulnerable person” is a child or cognitively impaired person: s 306M(1). Refer to [22-100] of the Local Court Bench Book in relation to procedures for evidence from vulnerable persons — Div 4, Pt 6, Ch 6 Criminal Procedure Act 1986 applies to proceedings in relation to the making, variation or revocation of AVOs: s 306ZA.

This is the most reported form of elder abuse, regarded as vastly unreported. Financial abuse is regarded as the “illegal use, improper use or mismanagement of an older person’s money, financial resources, property or assets without the person’s knowledge or consent”.^[122] It includes misuse of powers of attorney^[123] by spending an older person’s money in ways not in their best interests or for personal gain; coercing an older person to become a guarantor; promising care in exchange for money or property then not providing this; and pressuring an older person to take out a loan which is not for their benefit.^[124] The NSW Government inquiry and ALRC inquiry viewed financial abuse of older people as “a widespread and increasing problem” with “inheritance impatience” often being a factor in such cases.^[125]

In 2016–2017, the NSW Elder Abuse Helpline and Resource Unit received 1800 calls, 39% of which were related to financial abuse and 58% were related to psychological abuse, which often co-occurs with financial abuse.^[126]

Section 49 of the Powers of Attorney Act 2003 (NSW) provides that it is an offence if an attorney acts after the principal has terminated the enduring power of attorney appointment. There is a maximum penalty of imprisonment of 5 years. However, this is of limited use in elder abuse situations, where the misuse usually occurs while the power is still in effect.

In some circumstances, offences such as fraud, deceptive conduct/obtain benefit by deception, stealing and other property-related offences are available to prosecute abuse of older people’s estates and finances.

Presumption of advancement

Coinciding with the increase in family accommodation agreements (such as granny flats or an agreement to allow a parent to reside in the premises with adult children), is an increase in instances of elder financial abuse in relation to family accommodation agreements.^[127]

Such agreements are usually undocumented and, if they sour, may lead to disputes and litigation if the parent has made a financial contribution to the acquisition or improvement of property.

Such litigation usually involves the defendant seeking to rely on the presumption of advancement. The law presumes that, in certain circumstances, where person A has purchased property in the name of person B, they intended to make a gift to person B. To rebut the presumption, the purchaser must lead evidence of their actual intention which is inconsistent with the application of the presumption (ie evidence that, at the time of the purchase, the purchaser did not intend for the property to be a gift). The onus is on the purchaser to prove this evidence on the balance of probabilities. The evidence must relate to the purchaser’s intention at the time of the purchase. It will not be sufficient to show that the purchaser subsequently had a change of heart.

In Spink v Flourentzou^[128] the court held that the presumption of advancement should only arise where all the joint recipients of the money or property are in a relationship with the payer that is of a category that gives rise to the presumption: at [308]. In this case, the presumption did not arise because one of the recipients was the son-in-law. The court ordered that the plaintiff was entitled to the return of her contribution to the acquisition and renovation of the property, plus interest, secured by an equitable charge over the property: at [293].^[129]

Capacity abuse

In NSW, the Office of the Legal Services Commission dealt with 35 “capacity complaints”^[130] (that is, lawyers failing to identify warning signs of potentially impaired capacity, acting when client capacity was clearly impaired, not seeking appropriate medical input on client decision-making capacity) between 2011 and 2015. By 2016, the number of capacity complaints was 1.2% of all written complaints received, rising from 0.4% in 2012.

Guardianship and financial management orders may be sought from the NSW Civil and Administrative Tribunal as a way of addressing financial abuse of an older person with capacity issues.

The demographic reality of an ageing population means that the likelihood of challenges to wills on the ground of testamentary capacity is increasing.^[131] Where there is doubt about a person’s capacity, the transaction is always in some danger of being attacked unless it can be shown that the action was a free will action of the elderly person.^[132] This is most readily demonstrated by the older person obtaining adequate, competent and relevant independent legal advice (well) prior to the impugned transaction.^[133]

The Law Society of NSW publication “When a client’s mental capacity is in doubt: a practical guide for solicitors”^[134] provides some guidelines for solicitors to assist in the assessment of capacity when taking instructions. See also the Law Council of Australia’s “Best practice guide for legal practitioners on assessing mental capacity”.^[135]

In Ryan v Dalton [2017] NSWSC 1007 at [107], the court made a number of observations for dealing with the “increasing number” of challenges to testamentary capacity. Justice Kunc, noting the ALRC recommendation 8-1,^[136] and bearing in mind matters such as elder abuse in probate matters, undue influence and testamentary capacity suggested:

The NSW Court of Appeal found that a solicitor should have ceased to act on being instructed by a wife attorney to transfer a farm in the sole name of her husband to her four daughters for $1.00 when the solicitor knew that (a) the husband had now lost capacity (b) the transaction was improvident (c) the transaction was inconsistent with the husband’s will which left the farm to his son and (d) he acted for both parties. Though the land had by now been registered in the daughters’ names, the court found that the equity could be traced with the result that the daughters were obliged to account for the loss to the now deceased husband’s estate.^[137]

See further 11.5.1 — Legal capacity.

Generally speaking, Australian State and Territory laws do not provide specific offences against older persons. Although the Constitution contains certain heads of power which may provide a basis for the Commonwealth to legislate on matters for “ageing”, none specifically enables the Commonwealth to legislate or otherwise provide for protection against elder abuse.^[138] However, types of conduct which might be described as “elder abuse” are covered in all jurisdictions under offence provisions relating to personal violence and property offences. These include assault, sexual offences, kidnap and detain offences, intimidation and harassment, property and financial offences, fraud and theft offences.^[139] In its submission to the ALRC inquiry, the Law Council of Australia noted that “elder abuse” is rarely prosecuted under existing provisions.^[140] General neglect offences exist in all State and Territory jurisdictions^[141] although these are rarely utilised in respect of older people.^[142] Neglect is a Table 1 offence in NSW (ie indictable offence to be dealt with summarily) under s 44 of the Crimes Act if a person “who is under a legal duty to provide another person with the necessities of life and … who without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury”. The offence has a maximum penalty of five years and requires proof of a legal duty and causation. All State and Territory jurisdictions also have comprehensive family violence frameworks that provide for quasi-criminal, protective responses to abuse of older people in domestic settings.^[143]

Under 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court is to take into account as an aggravating factor whether the offence was motivated by hatred for, or prejudice against, a group of people to which the offender believed the victim belonged (such as age, or having a particular disability), when determining the appropriate sentence for an offence.

The victimisation rate for older Australians remains lower than the general population. This is due to their unique nature of social relationships and activities. Older people are victims of homicide most often as a result of an assault in their own home.^[144] Table 1 provides selected crime victimisation rates for people aged 65 years and over, compared with the total population.^[145]

Often older Australians have more accumulated wealth which make them an attractive target for scammers. Common online scams targeting older people include dating site scams pretending to be prospective partners and investment, rebate and inheritance scams.^[146] Some crimes are specifically targeted at older people because of their perceived or actual vulnerability or because they are potentially easy to steal from. Offences under this heading include:

Crimes against older people are often not reported. Research has found that many older people have little awareness of their legal rights and lack confidence in enforcing those rights. They can be reluctant to take legal action and find the law is disempowering and cannot solve their problems. Studies^[149] have identified the following as some of the possible reasons for under reporting:

Generally, there is no reason that age impacts the capacity of a witness. A judicial officer can take steps to assist an elderly person who may have specific health and cognitive issues. See below at 11.5 — Practical considerations.

An older person may find the experience of cross-examination challenging or bewildering. Note that s 41 of the Evidence Act 1995 provides for the statutory control of improper cross-examination in both civil and criminal proceedings. Section 41 imposes an obligation on the court to disallow a “disallowable question” and is expressed in terms of a statutory duty whether or not objection is taken to a particular question (s 41(5)). The section specifically refers to the need to take account of the witness’s age and level of maturity and understanding (s 41(2)(a)). A judicial officer may control the manner and form of questioning of witnesses (ss 26 and 29(1)), and s 135(b) of the Evidence Act 1995 allows the court to exclude any evidence that might be misleading or confusing.

A line of cross-examination may be rejected by applying s 41: “Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance”.^[151]

Vulnerable persons (including an older person with a cognitive impairment)^[152] in criminal proceedings or civil proceedings arising from the commission of a personal assault offence have a right to alternative arrangements for giving evidence when the accused is unrepresented. A vulnerable person who is a witness (other than the accused or defendant) must be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant (s 306ZL).

See further [10-000] Evidence from vulnerable persons in Local Court Bench Book.

NSW has seen an overall increase in the prison population of 25% for the 10 years 2005-2015. Offenders aged over 55 increased on average 91% for this same period. This growth was most marked in the over 65 year olds, with elderly men increasing by approximately 225%.^[154]

An ageing population increases the likelihood that older persons will be the perpetrators of crime. Offending rates for persons aged 50+ years have also increased since 2000. Older offenders increasingly contributed to all types of offences, with the most notable increases occurring among PCA/DUI offences, other traffic offences, drug offences and violent/sexual offences.^[155]

Brain disease can contribute towards criminal behaviour.^[156] Some dementia patients have been found to have profound behavioural and psychological symptoms, and criminal manifestations in individuals with dementia have been reported in aged care facilities.^[157] Clinical interviews of 28 consecutive first-time offenders in a group of people aged over 65 years found a prevalence of dementia of 21%. There is a growing body of evidence that some people with dementia can show impaired moral judgments, decline in social interpersonal conduct, transgression in social norms and antisocial acts”. One study showed that some dementia patients committed sociopathic acts because of disinhibition, and others had sociopathic behaviour associated with agitation paranoia, rather than primarily from poor impulse control.^[158] A study in Sweden of 210 offenders aged 60 and over^[159] found that 7% had a diagnosis of dementia, 32% psychotic illness, 8% depressive or anxiety disorder, 15% substance abuse or dependence, and 20% personality disorder. Older offenders were significantly less likely to be diagnosed with schizophrenia or a personality disorder, and more likely to have dementia or an affective psychosis compared to younger ones. Typically older offenders with a diagnosis of dementia are charged with sexual offences.^[160]

A NSW Bureau of Crime Statistics and Research (BOCSAR) study^[161] found that between 2000 and 2015 there was a 94% increase in the proportion of older offenders (ie over 50) found guilty of a principal offence with a 228% increase in older Aboriginal offenders.^[162] Although older offenders are increasingly contributing to all offence types, the most notable increases over time in the proportion of older offenders were observed for drug offences (277%), other traffic offences (157%), PCA /DUI (90.2%) and violent/ sexual offences (81.5%). By 2015, nearly one in five PCA / DUI offenders were aged 50+ while around one in 10 persons found guilty of a traffic, violent, or drug offence were aged 50 years or more.^[163] The most common offence committed by an older person (over 50) was PCA/DUI, although the proportion of offenders in this category fell from 34% to 26% in the study period.^[164]

The study found that the proportion of offenders aged 50 and over who received a custodial penalty rose by 111% between 2000 and 2015 with a 452% increase in the rate of older Aboriginal offenders.^[165] The most common offences for which older offenders were imprisoned in 2015 were violent/sexual offences (36.1%), drug offences (14.5%), justice procedure offences (13.8%) and property offences (13.0%).^[166] Possible reasons for why older people are appearing in court more often than in the past include older offenders being convicted of historical offences (mostly sexual offences as findings emerge from the Royal Commission into Institutional Responses to Child Sexual Abuse) and older first time offenders with a decline in cognitive health.^[167]

NSW has also observed an increase in Indigenous and female inmates among the aged population in this period. Although the actual numbers are small, aged females in custody have increased approximately 84% since 2005.^[168]

Older offenders are increasingly presenting with a prior proven offence and/or have reoffended within two years of their index offence.^[169] The proportion of aged offenders in NSW with a history of prior imprisonment increased from 38.5% of the aged offender population in full-time custody in 1999 to 54.6% in 2009.^[170]

Given the older prison population, and the fact that there is a 10-year differential between overall health of prisoners and that of the general population, older prisoners are more likely to experience premature ageing disease and disability, including dementia: see 11.1.4 — Health.

The study estimated that the number of older inmates in NSW custody is estimated to exceed 1,600 by 2020.^[171] The increasing proportion of older offenders in the prison population means that strategies will need to be put in place to cater for the specific requirements of older offenders, particularly Aboriginal offenders.^[172] Older inmates often have complex health issues and specific needs and vulnerabilities related to their age. Frail inmates have functional difficulties with the physical environment, including difficulties due to the number of steps, uneven surfaces, steep gradients and narrow doorways.^[173] There are few aged care beds available.^[174]

Australia does not have specialist aged care providers for people who have committed serious criminal offences, and few private providers are keen to take them on. That leaves many older prisoners, particularly older sex offenders, in prison long after their earliest release date, which in turn leaves prison hospitals to operate as proxy aged care providers.^[175]

The Law and Justice Foundation conducted an extensive review of older people’s access to law.^[176] This highlighted both general barriers and particular barriers for older people in accessing legal services. The Law Council of Australia released their final report on the Justice Project in 2018.^[177] Examples of particular barriers are those relating to specific groups of older people, such as those living in residential aged care facilities and retirement villages; older people with specific health issues; those who have experienced abuse; those with difficulties with financial arrangements; and issues concerning older people with diminished capacity who require decision-making support.

Older people with a disability will require different levels of support in order to make their own decisions. This reflects the move toward supported decision-making principles that are part of the Convention on the Rights of Persons with a Disability,^[178] the recommendations of the ALRC Report on Equality, Capacity and Disability,^[179] and recent proposals to amend the NSW Guardianship Act 1987 to legislate for supported decision-making instead of substitute decision-making.^[180]The NSW Government has enacted the Ageing and Disability Commissioner Act 2019 in response to a number of reports and inquiries, to assist in raising awareness of abuse, neglect and exploitation of older persons. This Act commenced on 1 July 2019.

The general barriers identified as impacting on an older person’s access to legal services included:

See further Legal Aid NSW “Policy Bulletin 2019/12”, where the Legal Aid NSW Board approved changes to eligibility policies to clarify that legal aid is available to people who are experiencing, or are at risk of, elder abuse.^[181]

Some of the specific issues impacting older people and their access to justice are set out below.

Older Australians are embracing the digital life. Seventy-nine per cent of older Australians have accessed the internet at some point in their lives.^[182]Although the internet has the potential to assist older people with information needs, according to the Australian Digital Inclusion Index (ADII) 2017, Australians aged 65 years and over are the most digitally excluded age group.^[183] This is despite initiatives such as “Tech Savvy Seniors” digital literacy program, and the Tech Savvy Elders Roadshow, targeting older Aboriginal people, which provides free or low cost courses to seniors and was initiated in 2013. Aboriginal older people tend not to use institutional sources, even those set up for them by governments; rather they rely on social and family networks.^[184] The penetration of new technology among certain groups, especially older people from CALD backgrounds, Aboriginal older people and those in remote areas, still remains low.^[185] Further, the level of online engagement reduces in the older age cohorts.^[186]

For some older persons, the shift to online services and communication has made it more difficult to find sources of legal information and access legal assistance.^[187] Further, effective internet searching is a complex skill.^[188] In submissions to the ALRC inquiry, it was noted that many government agencies require online form completion, which makes access (particularly for those in rural and remote areas) more difficult. Demographic differences reveal that within the older age group who are “offline”, they are more likely to be unemployed, have no tertiary education, have lower income, live outside major capital cities and be single/not married.^[189]

Along with privacy concerns, older Australians frequently cite concerns about security and viruses as a reason for not accessing the internet.^[190] These are valid concerns as people over the age of 65 years are increasingly vulnerable to scams, particularly those involving the loss of money.^[191] In 2017 alone, there were almost 16,000 reports involving a loss of over $9 million to Scamwatch by people aged 65 years over.^[192]

Vision decline, motor skill diminishment and cognition effects can also impair an older person’s ability to use a computer (although many government websites provide speech-enabled devices).

The lack of access to, and confidence with, information technology may be relevant where an older person is called for jury duty or appears as a witness or complainant in a trial, particularly in regional and remote areas.

Lower population density and more geographically dispersed populations make it more difficult and expensive to create and maintain comprehensive service infrastructure such as transport, health care, social services, education, information and communications technology and culture, compared to urban areas. Consequently, rural populations have less access to services and activities and their situation may be further aggravated when combined with poorer socio-economic conditions. This puts rural populations at a disadvantage compared to urban ones and can be particularly problematic for older people who may face a greater risk of social isolation, reduced mobility, lack of support and health care deficits as a result of the place in which they live.^[193]

Research consistently identifies the RRR population as having particular vulnerability to legal problems, a lack of capacity to resolve legal problems on their own and limited access to professional legal services. For older adults, legal problems can arise in matters that include:

Lawyer availability in some RRR areas varies and can impact a person’s access to justice. Some areas in NSW have no or few registered practising solicitors. Studies by the Law and Justice Foundation of NSW^[195] revealed that there were 19 local government areas (LGAs) in NSW without a single registered practising solicitor (private or public), and a number of other LGAs had only one or two. Access to solicitors in these outer regional, remote and very remote areas typically involved one or more parties travelling substantial distances. Further, the impacts on the justice system and rural communities of reduced levels of legal aid funding and increased demand for grants of legal aid are perceived as broad and adverse.

Limited access to transport together with mobility restrictions for some older people compound the barriers they face in seeking legal assistance.

The lack of access to legal advice is compounded by patchy, unreliable or absent mobile coverage in many rural and remote areas. Internet services, particularly in more isolated areas, only make available relatively small download allowances and these come at a much higher cost and slower speed than those services available in metropolitan areas.^[196] Data capped plans are common in non-urban areas, and would affect the capacity of those outside major capital cities to access some digital content.

Inadequate technological infrastructure in courts in RRR areas is a key contributing factor to RRR access to justice problems that must be addressed. The Law Council has suggested that the profession’s response to the COVID-19 pandemic offers an opportunity to build upon delivery of online courts, tribunals and dispute resolution forums, as well as to address issues faced by people experiencing disadvantage who may, for a variety of reasons, experience difficulties in adapting to legal services moving online — including members of RRR communities.^[197]

Isolation also puts an older person at risk of neglect and financial exploitation: see, for example, NAD [2018] NSWCATGD 1 where an 84-year-old woman of Turkish heritage was being cared for by her son in regional NSW. Mrs NAD’s daughter initiated proceedings seeking the appointment of a guardian and financial manager for her mother, alleging the son was controlling, bullying and aggressive to the mother, neglected her and allowed no visitors to the home. A guardianship and financial management order was made in respect of Mrs NAD, as the tribunal found her interests were paramount.

In 2020, the Law Council of Australia (drawing upon the expertise of the Constituent Bodies, the Law Council’s RRR Committee, and the Justice Project Report) developed a RRR National Strategic Plan focusing on five key areas for action, with the corresponding projects to be implemented by the Law Council over 2021-23. The Law Council developed the strategies to address the main challenges faced by RRR lawyers and their communities, which include:

A copy of the National Strategic Plan can be found here.

Figure 1 – Map of NSW showing areas of varying geographic remoteness^[198]

Not all older clients will experience a cognitive impairment, however, dementia is the leading cause of disability in people aged 65 years and over.^[199]

Capacity is the ability to make decisions. A presumption of capacity exists for all legal activities except the making of wills,^[200] but courts are reluctant to use a presumption as the foundation for a decision on an issue such as capacity and instead decide through close analysis of the facts of each case.^[201]

Capacity is task or domain-specific, that is, peculiar to the particular type of decision made. Thus, the capacity task is different for entering into a contract; executing a power of attorney, will or deed; appointing an enduring guardian or an attorney under a power of attorney; or consenting to treatment, divorce or marriage.^[202]

The degree of complexity of an older person’s affairs directly affects the level of cognitive function required to make a testamentary instrument. That is, the more complex the action, the more cognitive function is required.^[203] This represents an aspect of inherent vulnerability which greatly impacts legal capacity.^[204] A person’s inherent vulnerability may be exacerbated by situational factors, including family conflict. See further [11.2.3] — Succession/financial/capacity abuse.

The current NSW guidelines for capacity assessment caution lawyers about the potential for undue influence and the need to safeguard older people from abuse,^[205] however, family conflict is not raised separately as a factor that may influence decision-making capacity. See also the Law Council of Australia’s “Best practice guide for legal practitioners in relation to elder financial abuse” and its attachment “Best practice guide for legal practitioners on assessing mental capacity”^[206] which were developed in response to a recommendation in the Australian Law Reform Commission's report Elder abuse: a national legal response (2017).^[207] The best practice guides aim to assist legal practitioners to identify and respond to clients who may be subject to elder financial abuse and mitigate the risks of such abuse, and provide guidance on a legal practitioner’s obligations in relation to assessing a client’s mental capacity and how to assess capacity in various circumstances.

Initial considerations

Procedural fairness requires that, as with anyone who appears in court, an older person understands what the proceedings are about, the meaning of any questions asked of them, and is confident that the court adequately understands their evidence and replies to questions. An accused in a criminal trial in NSW has a right not to be tried unfairly, usually expressed as a right to a fair trial.^[213] Note that many people lose their hearing slowly as they age, and courts need to ensure that these older people are assisted to enable them to participate in the hearing.

As indicated in 5.4.1, some people with disabilities may need some form of communication aid to be made available for them to be able to communicate their evidence and/or hear what is being said by others. People with language barriers may need the services of an interpreter or translator: see further at 3.3.1.1. They may also need some adjustments to be made in the level or style of language used, and/or the manner in which they are given information about what is going on.

Some people who do not need a communication aid or interpreter may need adjustments to be made in the level or style of language used and/or the manner in which they are given information about what is going on.

Points to consider:

Many barriers for older people accessing the law are distinctly personal: declining health and mobility, disability, ethnicity, language, gender and social isolation. Some distrust the police and legal services based upon past discriminatory experiences.^[214] It is important to explain court proceedings and processes adequately to an older person to ensure procedural fairness. This is particularly relevant to an older witness who may be a victim of sexual assault.

Points to consider:

Points to consider (and note that many of these points apply to senior lawyers and jurors, not just to litigators and witnesses who are older).

Points to consider:

When older people become involved with the justice system, or attend court, their needs are likely to be similar to those of other age groups unless they have a disability. For these older people and the very old, some adjustments should be considered before proceedings start or at the time the person first appears in court.

Some older people have physical disabilities or other limitations, and may be experiencing ill health, so it is important to be mindful to provide the same practical requirements as those listed in 5.6.1 and 5.6.2 of the this Bench Book.

Some particular points to consider in relation to older persons include:^[217]

Points to consider: