Vol 33, No 2 (2015): Ageing and the Law

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This article examines the current legal framework for restraint of persons with dementia in Western Australian aged care facilities and evaluates it in light of recent developments at the national and international levels. It highlights how the current legal framework fails to adequately protect people with dementia and aged care professionals, and considers options for reform. We argue that the viability of supported decision-making for restraint decisions needs to be carefully considered, and that law reform is necessary to ensure that the best decisions are made, the dignity of dementia sufferers is protected, and that there are safeguards to prevent abuse.

To some older people, the prospect of moving in with family to be ‘cared for’ as they age has considerable appeal. For example, an older person may choose to sell his or her home, invest the money in a child’s property through the construction of a ‘granny-flat’ or extension and live in that property. If such arrangements are successful, the older person is likely to enjoy the companionship and support of family as he or she grows older. Unfortunately, the legal position of the older person if ‘something goes wrong’ is precarious. In the absence of a legislation addressing family accommodation or ‘assets for care’ arrangements written agreement, the older person must navigate the vagaries of several complex areas of law, particularly constructive trusts and estoppel, and endure the stress of proceeding against family members. This article discusses the shortcomings in the existing legal regimen and makes recommendations to provide legal protection for older people entering into such arrangements.

There is much discussion about the shortage of affordable housing in Australia and the rising tide of homelessness. Perhaps surprisingly to some, older women are one of the fastest growing groups of people experiencing homelessness. In the aftermath of a lifetime of income inequality and taking ‘time out’ for caring responsibilities, older women may be in a precarious position should they encounter illness, divorce or unemployment in mid to older age. This article outlines the background to the growing number of older women experiencing homelessness and, although the authors are not suggesting the law can provide ‘the answer’ to this multi-faceted conundrum, the article examines possible contributions the law could make in alleviating some pitfalls encountered by older women experiencing housing stress or homelessness.

This article considers the implications for parties to a marriage and their property when they are forced to separate as a result of ill health. This has particular relevance for elderly Australians who experience declining health accompanied by cognitive decline and loss of decisionmaking capacity. The potential for the property interests of the couples in these circumstances, to be altered by family law proceedings, has been confirmed by the High Court of Australia in Stanford v Stanford. The door to the Family Court is open for financial proceedings to be brought on behalf of a party to a marriage who no longer has the capacity to make financial decisions for him or herself and who has financial needs that cannot be met from their own property. The article examines the legal position of couples when third parties are contemplating the commencement of proceedings in the Family Court for financial orders.

The role of equity release transactions in enabling older owners to draw down on their housing wealth to meet needs and wants in later life is a prominent policy trope in many asset-based welfare systems. Framed by the enactment of the Consumer Credit Legislation Amendment (Enhancement) Act 2012 (Cth) – in which the Federal Government established regulatory jurisdiction over reverse mortgage transactions – and drawing on empirical research into the uses and risks of housing equity withdrawal mechanisms in Australia,1 this article compares the recent Australian experience of equity release with the longer-established UK equity release market. Reaching across the demographic, socio-economic and policy contexts which are widely regarded as setting the scene for increasing use of housing wealth to fund financial needs after retirement, to the nature and development of equity release markets, this article draws on the UK experience to reflect on patterns of supply and demand, on the needs, circumstances and objectives of the equity release consumer population, and on the role of the state, through law and policy, in mediating the transactional interface between consumers and markets to support the matrix of consumer interests, industry growth and related government policy agendas implicated in the equity release market.

The past decade in Australia has seen renewed policy interest in access to justice. In turn this has highlighted the need for evidence-based research on the legal needs of socially and economically disadvantaged groups. Older persons, or people over the age of 65, have been recognised as a distinctly burdened group who are vulnerable to substantial and distinctive legal problems with adverse impacts on their life circumstances. Yet the legal needs of this group remain largely unmet, hidden from the legal service providers and complaint handling bodies. This article provides an overview of recent research on legal needs in Australia and internationally. It explains that there needs to be further targeted empirical research to identify the substantive reasons why older people do not currently enjoy equality before the law.