Going strong, 25 years on

The Aged Care Rights Service has celebrated 25 years of helping older people defend their legal rights and avoid being swindled, or worse.

By Stephen Easton

The Aged Care Rights Service (TARS) last week celebrated 25 years of standing up for the rights of older people in New South Wales and providing free legal advice through the Older Persons’ Legal Service.

A 25th anniversary cake was cut at last Friday’s event by TARS chief executive Russell Westacott and Barbara Squires, chair of TARS and general manager, ageing, at the Benevolent Society, along with NSW upper house member Marie Ficarra, representing the Minister for Ageing and Disability Services, Andrew Constance who was unable to attend.

The ceremony was followed by a full-day event including seminar-style presentations on elder abuse and a lively panel discussion, chaired by television identity and former journalist, Julie McCrossin.

After the cake-cutting Associate Professor Michael Fine, head of Macquarie University’s Department of Sociology, gave a presentation on the historical development of residential aged care regulation in Australia, and the evolution of advocacy for quality care and the rights of care recipients, leading up to the establishment of TARS in 1986.

Paul Sadler, CEO of Presbyterian Aged Care, weighed difficulties in the prevention of elder abuse against the problems associated with attempts to ‘cure’ society of it, in between speeches by two legal experts.

These various attempts to catch elder abuse perpetrators, Mr Sadler said, had in some ways ignored the rights of older people themselves – by preventing them from choosing not to involve police or the Department of Health and Ageing, and marginalising the rights of people with dementia.

The self-described career social worker argued that mandatory reporting of elder abuse had been largely unsuccessful in reducing its prevalence, and that many aged care providers felt they were likely to be ‘found guilty’ every time they reported.

While elder abuse is not actually a legally defined term in Australia, Mr Sadler said that it featured three main elements – harm occurring to the older person, their relative vulnerability to abuse, and the nature of their relationship with the ‘abuser’.

Experts, he said, generally recommended a “high index of suspicion”, which could, on the other hand, lead to unfounded suspicions and false accusations.

Above: Russell Westacott, CEO of TARS, cuts the anniversary cake with NSW upper house member Marie Ficarra and Barbara Squires, general manager, ageing, at the Benevolent Society. 

Professor Nick O’Neill, a visiting fellow at the University of New South Wales Faculty of Law and former president of the NSW Guardianship Tribunal, explained the basic common law principles that strongly protect all citizens, regardless of age, frailty, disability or decision-making ability.

Common law – which has been built up over centuries and pre-dates legislation passed by democratic parliament – includes longstanding offences like assault, battery and false imprisonment, and is the “background” against which all other laws operate, he said.

“Sometimes people say things like, ‘You show me where, in any regulation, it says I have to do that’, but sometimes it’s not written down; you just have to do it because it’s in common law,” Professor O’Neill said.

The law professor also explained that contracts can be declared void if it can be proven that one party knew the other was incapable of understanding the agreement, and that wills can be set aside if there are suspicious circumstances or the suggestion of ‘undue influence’, which could be presumed from the nature of certain relationships.

Queensland-based aged care lawyer, Brian Herd, later pointed out in his presentation that undue influence would be presumed in the relationship of a parent to a child, but would have to be proven in the case of a child to a parent, even when that child is an adult and their parent is dependent upon them.

Mr Herd also pointed out that the charge of ‘failing to provide the necessities of life’ was usually levelled against parents, but rarely, if ever, at children for failing to look after their elderly parents.

Assessing decision-making capacity, he said, was perhaps the biggest legal issue in elder abuse, although little guidance exists, even for lawyers, on how to accurately assess a person’s cognitive ability.

The always-humourous lawyer also explained ‘filial responsibility’ laws in parts of North America that make children responsible for the care of their parents in some circumstances – which, he said, had led to nursing homes suing residents’ children, and older people reducing their responsibility to their spouse during family disputes and divorce proceedings.

Tags: consumer-affairs, elder-abuse, law, legal-issues, the-aged-care-rights-service,

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