Centrelink is able to send social security payments to a nominee, to release information to a nominee, and to accept changes in information from a nominee. As social security is administered by the Commonwealth, Centrelink does not automatically recognise powers of attorney drafted under State legislation. Wills are the most common formal legal mechanism for advance decision-making, permitting people to prepare instructions about the distribution of their assets after their death.
Generally, will making is an accessible process, with most older people either having a will or being aware of their basic function. The complexity of applying for a grant of probate for a deceased's estate presents more difficulties for older people in terms of formality and expense. It was reported that there is insufficient free assistance for probate matters.
Concerns were expressed about the use of lawyers in will making and in applying for the grant of probate, including concerns about potential conflicts of interests for lawyers who advise the testator as well as the family, and about the potential difficulties in locating wills or determining which of a number of wills is valid. Identified problems relating to grandparenting include denial of contact and grandparents caring for grandchildren. Separation or divorce may result in a grandparent's contact with grandchildren being reduced or denied, particularly if the grandparent is the relative of the parent who is no longer living with the children following the separation.https://miturroecrosgiu.cf/pearl-harbor/the-red-room.pdf
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If the grandparents' relationship with their own child becomes strained they may also experience difficulty in having contact with their grandchildren, even if there has been no separation or divorce. Some grandparents have full-time care of their grandchildren, either on the basis of a residence order through the Family Court or a care and protection order through the Children's Court. Grandparents, attempting to obtain a residence or protection order, often find themselves negotiating a very complex area of the law, under both State and Commonwealth jurisdictions. The most commonly recurring theme throughout this project was that older people are often reluctant to complain about issues affecting them.
Given older people's distrust of the legal system, and limitations of the law in addressing their legal problems sufficiently, there is a danger that the legal needs of older people may be largely hidden from legal and non-legal service providers, courts, tribunals, and complaint handling bodies. A specialist legal service for older people could provide a valuable resourcing role for generalist legal services across NSW regarding issues for older people and methods of effective service delivery to older people.
In the Foundation commenced the Access to Justice and Legal Needs research program, which aims to examine the ability of disadvantaged people to:. An important feature of the program is the examination of the particular access to justice and legal needs of selected disadvantaged demographic groups. This report is a qualitative study examining the legal needs of older people. Other groups to be examined as part of the program include homeless people and people experiencing a mental illness.
These groups have been chosen principally because less is available in the literature concerning their legal needs. Given the ageing of the population over the last twenty years and the likely continuation of this trend in the coming decades, there is a pressing need to consider the particular legal issues confronting older people, their ability to access legal services, and the issues within the legal system which present barriers for them.
This report attempts to address this need, within the scope of the research methodology. This report into the legal needs of older people is based on a review of existing literature, consultations with legal and non-legal service providers, academics, and older people themselves, and seeks to canvass many of the particular issues relevant to older people in NSW.
The following reports, in particular should be considered:. This report considers the particular legal needs of older people in NSW and the barriers they face in accessing services that can help them resolve their legal issues. Women were a majority of the older group overall 56 per cent and a high proportion of those aged 85 and over 69 per cent.
It is projected that people over the age of 65 will comprise 17 per cent of the population in NSW by In considering the ways in which the circumstances of older people might give rise to legal needs different from those of younger people, it is important to consider both life-cycle factors and cohort factors.
Life-cycle factors are those that affect people as they age, either through the physical and mental process of ageing or through the socially constructed expectations of the role of older people. These life-cycle factors include:. However, older people are not a homogenous group.
They may face a diversity of issues and challenges which may be related to a number of factors, including ethnicity, family status, where they live, level of income and wealth, the type of accommodation in which they live and whether they have any disabilities or health-related problems. When combined with their age, such factors may accentuate their level of disadvantage.
Thus for many people, ageing is associated with losing their spouses. As well as the grief and loneliness that this entails, they often need to make major adjustments. An older person who is living alone may become more reliant upon family support if it is available. Further, some men with traditional gender roles may find themselves having to learn domestic skills that they have not needed in the past. For men over 65 years… the loss of a partner signals tremendous increases in unpaid work The scale of these increases is truly breathtaking, with laundry time quadrupling and cleaning and cooking trebling.
Retired men living alone are the only category of men who spend more time in food and drink preparation than their female counterparts. Some widowed women may be confronted with learning to manage financial affairs with very limited experience or knowledge. Many in the current older generation may have been financially dependent on their husbands for most of their lives.
For many older people, retirement to the coast or country is a financial or lifestyle choice. As a result, some areas have relatively larger proportions of older people. This has implications for the provision of, and distribution of funding for, public services such as specialised health services, home help, public transport and specialised legal services. Older women are less likely than men to be receiving superannuation income either on their own account or from their husband's employment.
This reflects the fact that women are more likely than men to have spent much of their adult lives out of the labour force. The pattern of women's working lives is often characterised by employment designed to fit around the demands of child bearing and child rearing, with lengthy periods out of the labour force and often a preference for occasional, part-time work.
The failure of superannuation schemes to reflect the nature of the working lives of women means that relatively few older women have been eligible to draw benefits in their own right upon reaching retirement age. Low interest rates over the last seven years have also had a negative impact on the investment incomes of older people who are self-funded retirees. Older people are eligible for a range of concessions related to health, pharmaceuticals, transport, rates, telephones and various leisure and entertainment activities provided by different levels of Government and the private sector.
Different eligibility criteria and different concessions apply to each of these. Nevertheless, a high proportion of older people suffer serious financial hardship. Consultation by the Older Women's Network with older women in —96 found that over two-thirds of those receiving a pension felt it was not enough to live on. Their main concerns were their inability to replace household equipment or afford maintenance to their homes, and a fear of health costs.
Ninety-three per cent of older people live in private dwellings, compared to 99 per cent of those aged under The likelihood of a person living in an institutionalised setting increases with age: of those aged 85 years and over, 34 per cent lived in nursing homes or in retirement or aged care accommodation. In particular, it reinforced that all Australians, regardless of age, should have access to appropriate employment, training, learning, housing, transport, cultural and recreational opportunities and care services that are appropriate to their diverse needs, to enable them to optimise their quality of life over their entire lifespan.
Neither of these frameworks specifically addresses access to justice and the legal needs of older people. In addition, in Australia, there has been little research into the legal needs of older people, despite the fact that older people are a considerably disadvantaged demographic group. Chapter Three looks at difficulties encountered by older people in accessing legal assistance, including legal information, legal advice and legal representation.
The chapter considers the effect of attitudinal and cohort factors in presenting barriers to engaging with the legal system, as well as aspects of legal service delivery which present access difficulties for older people. Chapters Four to Ten look at specific areas of law which significantly impact on older people, and the services and processes available to older people to resolve these issues. Chapter Four looks at the diverse accommodation-related legal issues confronted by older people.
Issues related to nursing home accommodation, residential aged-care facilities, retirement villages, strata title issues, tenancy issues both private and public housing , issues associated with home ownership, boarding house accommodation and accommodation in residential parks are considered.
Chapter Five looks at the health-related legal issues for older people. Chapter Six looks at the significant consumer and financial issues which confront older people, and their related legal problems. Chapter Seven looks at the incidence of age-related discrimination for older people and the impediments in accessing anti-discrimination resolution processes. Chapter Eight looks at issues pertaining to the abuse of older people, whether by their spouse, by another family member, by their carer or by an institution. Consideration is given to the different types of abuse, including physical abuse, financial abuse, psychological abuse, sexual assault and abuse, and neglect.
Chapter Nine looks at the legal issues which arise when an older person has to consider arrangements for substitute decision-making and certain end of life related issues. These include arrangements for powers of attorney, incapacity and guardianship issues, nominee arrangements and wills. As a conclusion, Chapter Eleven provides an overview of the barriers and difficulties confronted by older people in accessing legal assistance, participating effectively in the legal system, and accessing various alternative forms of dispute resolution and non-legal advocacy.
In terms of the legal issues which confront older people, it was decided not to include a separate chapter covering general issues of crime and crime victimisation. It was noted that the existing literature indicates that older people have a high fear of crime. However, the actual incidence of crime against older people is significantly lower than for younger people.
According to the Australian Institute of Criminology:. This report aims to record as fully as possible the substance of the responses received through the various consultations and submissions, and of the relevant literature which has been examined. In this respect, the report reflects the results of methodology which is largely qualitative in nature. A total of 2, participants were interviewed by telephone as part of this survey. At the time of writing this report the data analysis of the survey had not been conducted.
However, across the six regions, a total of people over the age of 65 participated in the survey. It is anticipated that analysis of the results for these older people will provide significant quantitative information regarding the access to justice and legal needs of older people in NSW. It is anticipated that a report detailing these results will be available in During the research, some exceptions to this definition were allowed.
In particular, the process of exclusion from paid employment through age discrimination is more apparent among people below age 65, because by that age few people are still in employment or seeking it. An exception was also made for Indigenous people, where consideration was given to those aged 45 and over. The reason for this was because the Aboriginal and Torres Strait Islander population is significantly younger than for the population as a whole.
In , only 2. The background paper was distributed to individuals and organisations identified as potential stakeholders in the project, to assist them in providing relevant information to the research team, either through the consultations or the submission process. These included community and peak organisations representing the interests of older people in NSW or providing services to older people in NSW, relevant government bodies, community legal centres, ageing and disability officers in local government, academics and others with an interest in general or particular issues concerning the legal needs of older people.
The literature review was governed by a number of strategies. First, because the study focused on the legal needs of older people in NSW, priority was accorded to literature dealing with NSW. In the absence of relevant literature in NSW, or as a means to engage in comparative analyses, materials dealing with other Australian States and Territories, and to a lesser extent, with foreign jurisdictions, were collected. Second, the literature review was generally limited to literature that was published from onwards. There were occasions when there was a need to review literature published prior to , primarily where nothing more recent had been written on the topic and the publication contained information that remained relevant to the present issues.
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Third, while there did exist some literature which generally dealt with the legal needs of older people, it was recognised that most of the literature would be more directly related to specific areas of law, policy and practice. Therefore, we proceeded with using the broad areas of law that had been determined as forming the basic structure of the study to locate materials which were pertinent to those areas. This allowed us to uncover literature which, on its face, had no obvious connection with legal needs and access to justice, but whose content provided valuable information on particular issues related to this field.
The research team conducted nine focus group discussions, involving a total of 78 participants three-quarters of whom were women. In selecting the organisations with which to organise the focus groups, the research team sought to get a representation of both older men and women, older people from urban, regional and rural locations, and older people in different accommodation arrangements. The research team also sought to obtain the views of Indigenous older people, and also of those who work with older people in need of a high level of care and support.
Participants in these focus groups were first asked a general question about what legal problems or issues they had experienced since they had reached the age of This was asked with the intention of identifying what areas would be of most significance. However, given that this general question was interpreted very narrowly by participants — as referring only to criminal law or court cases — it was necessary to give participants a brief outline of the other legal areas that might be pertinent.
Participants were then prompted with a series of general questions, each of whom were asked about whether they had experienced a particular type of legal problem. The legal problems asked about first were less sensitive problems such as wills, conveyancing or retirement village contracts, or financial issues. Participants were then asked about more sensitive issues and those in which legal avenues were less likely to be used, such as family issues. Finally they were asked indirectly about issues relating to financial or other elder abuse.
That is, they were asked whether they knew of cases where older people had experienced these kinds of problems, rather than being asked whether they themselves had experienced these problems.
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This was asked indirectly because it was thought that people who had suffered abuse might be reluctant to discuss it in an open forum. The other source of data from older people was by individual submission. The research team placed an advertisement in Age Pension News for Seniors Magazine asking readers to contact the Foundation by telephone, e-mail or post. In particular, the advertisements invited older people to provide information about:. We received contacts, 85 of which were from NSW callers and 31 of which were from other States. In 19 cases the State was not identified.
Most submissions were received by telephone and most concerned individual experiences. These submissions provided us with a valuable indication of some of the prevailing legal problems and issues of interest to older people. It appeared to the research team that as the telephone conversations were confidential, people were even more likely to discuss matters of a personal nature than had been the case in the focus groups.
The telephone calls enabled us to interview callers in more depth and at greater length than would have been possible through a structured survey or via written submissions. It should, of course, be noted that the callers were self-selecting and thus cannot be considered representative of all older people in NSW. More importantly, the callers had defined what they saw as legal problems and the issues they chose to raise with us, rather than the researchers selecting the issues on which to collect data. The stories these callers recounted reflected their perceptions and attitudes.
The research team was not able to make judgements about the accuracy or validity of complaints on the basis of one side of the story. The outcomes of these forums, together with the papers from the forums, have been considered as part of the consultation process for this study. It should be noted that the list of forums and conferences attended does not represent an exhaustive list of relevant conferences and forums which occurred during the conduct of the present study.
When older people do seek assistance to address a legal problem, they frequently demonstrate high expectations of legal service providers. However, as previously mentioned, it is not possible to reliably generalise about older people. Different people have different needs and various levels of engagement with the legal system. The following comments from legal service providers to Indigenous service users exemplify a differential approach to the legal system.
Another participant in this project based his rejection of the legal system on assumptions about the current law. He said that he was inhibited from using the law because of his perception that the laws have fundamentally changed such that there are no longer the same remedies, and going to court has been substantially restricted. One service provider noted gender specific misconceptions about the legal system from the perspective of older women. For some, 29 engagement with the legal system is not a choice. They are forced to participate, when clearly they would prefer not to be involved.
Even though older people exhibit high use of telephones for communication, submissions to this project indicate that they prefer to speak to someone rather than be faced with messages and directives to press a number to clarify their needs. Clearly, the telephone does present some barriers to access for older people, although it also can make legal services more accessible, particularly when there are mobility issues for people with disabilities or for people living in rural, regional and remote areas.
The internet has been increasingly relied upon by legal service providers, government departments, complaint handling bodies and interest groups to convey legal information to consumers. There is some evidence that older people are using the internet more. People generally do not actively seek out legal information until they, or someone close to them, has a legal problem.
Implicit in this, is that they realise that the problem they are experiencing is legal in nature or has legal consequences or remedies. There are some areas of the law that bear special relevance to older people. One report has indicated that substitute decision-making, care arrangements and accommodation decisions are of particular significance to older people. Data collected from Legal Aid NSW shows that housing, wills and estates, personal injury, consumer issues and other civil issues are the subject of most inquiries by people over Table 3.
In at least some of these identified areas, forward planning is a pivotal preventative mechanism to avoid many problems arising. This was acknowledged in the research conducted on behalf of Centrelink in It also advocates for residents of retirement villages and serviced apartments. It offers a telephone information service, and also conducts workshops for service providers and staff as well as residents. In a consultation with the Aged-Care Rights Service, they reported overwhelming numbers of inappropriate referrals from service providers and cold calls from older individuals, which they then had to refer on to other services.
Many veterans also seek assistance from private advocates who work on a contingency basis. NSW Local Courts provide ad hoc outreach services on request for frail aged people in aged care facilities. One explanation for the lack of a specialised service for older people and the relatively small numbers of agency initiatives aimed at older clients is the small numbers of clients over the age of Possible reasons for this were the Legal Aid means test and the fact that the majority of cases dealt with by Legal Aid were Family Law and Crime.
We don't have a lot of older clients but we're not sure why that is. I can speculate that it might be the demographics of the area. I think there is an information problem — that older clients aren't aware of the services available. I have a printout of the cases which came in and it's a tiny proportion a few thousand visits and 60 of them from older people. Older women make up six per cent of the total stats for the DV [domestic violence] court assistance scheme.
Six per cent are older people, if not lower, with the general legal service. Older people living in rural, regional and remote areas were identified in the consultations as being particularly difficult to service. Distance, disability, numbers and resources were all identified as key issues. The first issue for older clients is mobility and geographical access particularly as older people tend to live more regionally and are less likely to drive. Also many of them have mobility restrictions because of disability. A number of service providers to older clients mentioned the fact that older people require a particular sensitivity to time management issues from their service providers.
The Legal Aid policy officer consulted for this project saw this as a benefit. Older people are definitely more time consuming. They want to tell stories rather than come to the point. They avoid direct questions. Even stating the problem is too hard. They jump around from question to question and issue to issue… By the time they come to Consumer Credit Legal Centre the situation has got out of control.
If they had come earlier we would have been able to help them structure their debts to avoid it getting so bad. The Queensland research revealed that when the older people they sampled did access legal services, the majority had positive experiences, reporting kindness and a willingness to assist as features of good practice. There were no unequivocally positive submissions to this study made by older people about legal practitioners.
The following two submissions, however, had some favourable comments regarding legal service providers. Many of the older individuals making submissions for this project commented on communication difficulties when it came to dealing with lawyers. Some callers reported that accessibility to their legal practitioner for the purpose of communication was a problem. Dreher also stresses the importance of not attempting to rush an older person into making a decision or providing instructions. Whether it is assumed or experienced, many older people operate under the belief that access to quality legal services are beyond their incomes.
Other participants reported that solicitor's fees were misrepresented to them and that the amount was severely underestimated in the initial advice they received. One caller also felt that large, powerful defendants are apt to discourage lawyers from entering into no-win no-fee arrangements. The Queensland research into legal service provision to older people also indicated that older people felt lawyers were not interested in their problems.
Submissions made by older people to this project resonated with that research. An issue raised by a number of different service providers with older people as clients was that providing assistance to the older person via their family members can cause a variety of concerns for both the older person and the practitioner.
Many submissions from individual older people noted that they had, or would like to complain about the solicitors they had retained. A few submissions to this project emanated from older people who were at an impasse. Having tried several different legal and non-legal mechanisms for redress, they were left feeling as though no method could help alleviate or solve their problems. In a consultation with Legal Aid NSW, the opinion was advanced that many older people would necessarily be excluded from accessing grants of Legal Aid.
One reason for this is the high number of older people who own their own homes and live on a pension. The policy's harsh effect was highlighted in a consultation with the Women's Legal Resource Centre. Ineligibility for Legal Aid can and does force people who have no other choice to represent themselves — sometimes to their detriment. Reductions in funding to Legal Aid over the years has created more stringent policies limiting its application, both on financial grounds and to various areas of the law.
This can impact harshly on older people particularly, as they can be more vulnerable than other groups. As older people are less likely to be in the workforce, they are more likely to spend time at home which increases the chances of them being embroiled in a neighbourhood dispute. This policy means that if they need to apply for an APVO to protect themselves from a violent, threatening or harassing neighbour, they will not have the benefit of Legal Aid assistance.
In turn, the policy may create greater resource pressures for Community Legal Centres, as older people, among others, will likely require assistance to apply for APVOs. The uncertainty of whether or not Legal Aid will be granted can produce great stress for older people, particularly in circumstances where family members are involved:. Many of the obstacles in accessing legal services emanate from features of the current cohort of older people.
Although these are necessarily generalisations, and some are contradictory, these can be briefly summarised as follows:. It is clear both from previous research and submissions made by older people that their needs in terms of legal service delivery are not so great that they cannot be negotiated. They are as follows:. According to the Australian Bureau of Statistics, older people place a high value on their home environment, as they are less likely to be in full-time employment, and consequently more likely to spend more time in their home, and in their immediate neighbourhood, than at any other period in their lives.
In NSW, as at 30 June , there were 48, permanent residents in residential aged care services. Of these:. NSW Health states that under the Aged Care Act Cth , a resident faced with an eviction decision bears the onus to initiate action to appeal and defend the decision. The Aged Care Alliance expressed concern that the contractual and financial arrangements regarding nursing homes are often confusing to older people, who may not be aware that they are entering into arrangements that are not in their best interests. The Combined Pensioners and Superannuants Association of NSW CPSA has expressed concerns regarding continuing reports of the poor state of some nursing homes and RAC facilities, and the lack of legislative protection for nursing home residents from ill treatment.
The Association asserts that low bed numbers, shortage of staff, especially qualified nurses, and a legislative framework which was not designed to address issues of abuse and neglect, are major factors contributing to incidences of abuse and neglect in nursing homes and RAC facilities. Incidents of financial abuse in residential aged care services were reported by some contributors. Reports of residents losing most of their pensions to nursing homes' fees and charges, as well as residents receiving excessive pharmacy bills were received.
It was noted that many aged residents find it difficult to check the validity of the bills, charges and fines they receive, making them vulnerable to financial abuse. The Private Health Care Branch of the Health Department and the Health Care Complaints Commission have expressed concerns about what appears to be a systemic problem with the prescribing, administration and reviewing of psychotropic medication in aged care facilities. A study of 46 nursing homes in the Central Sydney Area Health Service concluded that the percentage of residents in Central Sydney nursing homes who were taking psychotropic drugs was among the highest reported from geriatric institutions worldwide.
The Taskforce confirmed that despite the fact that such practices breach the rights of residents and have potentially harmful consequences, restraint was often regarded by providers as an 'easier' and less expensive way of managing difficult behaviour than appropriate behaviour management strategies. The NSW Department of Health reported that claims have been made that the use of restraints continues to be a major problem in nursing homes in NSW, due to:. According to NCOSS, residents' access to medical and care records is a necessary pre-requisite to the protection of their rights within nursing homes.
It expressed concerns that the Aged Care Act Cth fails to provide for satisfactory access to clinical records by residents of residential care services. NCOSS has expressed concern regarding reports that unscrupulous providers charge residents for equipment and materials that are paid for under the Commonwealth subsidy, even though provision of these items is a mandatory part of the care that is supposed to be provided. Some advocacy groups have expressed concern that this demonstrates deficiencies in the systems of montitoring compliance under both the State and the Commonwealth regulatory regimes.
Under the Commonwealth Act, all providers of residential services are required to establish a process to deal with complaints at the service level. According to Sandra McCullough of the Victorian Residential Care Rights Advocacy Service, the quality and effectiveness of these internal complaints resolution mechanisms vary greatly, and only a minority appear to provide fair, accessible and effective systems.
Where an internal complaints mechanism is ineffective in resolving a consumer concern, a complaint may be lodged, either orally or in writing, with the Complaints Resolution Scheme CRS of the Department of Health and Ageing. The complaints may be about anything relating to residential care that affects a person who is receiving or is eligible to receive residential care services.
The CRS has a discretion as to whether to accept a complaint, or reject it where it considers it to be frivolous, vexatious or not made in good faith, or where the complainant has initiated legal action. The scheme involves three stages — negotiation, mediation and determination. Where negotiation and mediation fail, the matter is heard by the Complaints Resolution Committee, where a decision will be made as to a process for resolving the complaint. Where a provider does not act upon the Committee's decision, the matter is referred to the Commonwealth Department for action.
The matter is concluded when resolution is achieved and all parties are informed of the outcome. The focus of the system is on resolving the complaint through negotiation and mediation. It is not the role of complaints units to substantiate a complaint or take an investigatory role. Units can accept anonymous complaints, however resolution becomes more difficult where only one of the parties is identified. There is reasonable satisfaction with the complaints process when mediation is able to restore breakdowns in communications and relationships with the provider.
However, identified problems with the CRS process include:. These include issues about staffing, quality of premises, equipment, furniture and facilities in the service, and quality of care. The PHCB focuses on local resolution of issues between facilities, residents and their relatives and will refer complainants back to the facility in question for resolution if they have not already attempted resolution with them first.
The NSW PHCB has the power to investigate complaints, including the ability to act on anonymous complaints, enter facilities, and examine and remove relevant records and documents. However, they cannot compel staff to talk to them as part of their investigations. The HCCC deals primarily with complaints relating to the professional misconduct of health care practitioners and the clinical management or care of individuals by health service providers.
The HCCC has the power to investigate complaints, to refer complaints to the Health Conciliation Registry for conciliation, and to refer complaints to registration boards, practitioners and employers for investigation. The HCCC will not act on an anonymous complaint unless there is clear evidence of a systemic problem that needs to be investigated. NCOSS reported that while it is important to have as many avenues for complaints handling as possible available for vulnerable consumers, the maze of mechanisms can present problems.
It emphasised that there is a need for a co-ordinated and cohesive mix of complaints handling mechanisms which can appropriately respond to a range of issues and complaints. Other identified barriers to using the complaints resolution mechanisms include fear of retribution from the service provider or the provider's staff, and also a sense by consumers that it is ungrateful to complain, when they feel that most staff may be overworked and stressed. NCOSS also emphasised the importance of advocacy, expressing concern about the capacity of existing advocacy organisations to respond in the face of increased demand for assistance from residents in nursing homes.
TARS also provides information telephone services and workshops for residents. The following agencies provide a range of printed, online and telephone information services to residents and prospective residents of nursing homes:. The exact number of residents in retirement villages is difficult to estimate due to the fact that many villages are not registered, and new villages are regularly being established. This confusion largely arises as a result of residents having sold their former home and then paying a considerable portion of the funds of the sale as an 'entry contribution' into the retirement village, for the right to reside in a property in which they only have a leasehold interest.
The most common complaint arising from this situation is that a solicitor has failed to adequately explain the terms of the occupation under the contract. The special legislation governing the rights and relationship between residents and village owners may not be well undestood by lawyers and residents and potential residents may not have sufficient information to make an informed choice. There is confusion about residential accommodation and retirement village issues. Even lawyers often don't have any idea. Many people don't get advice on these contracts.
As village residents are participating in a form of communal living, they are liable for the operating costs of the village by way of a monthly levy payment. If the village has extensive facilities or plans to provide additional facilities, this payment can be substantial, with the possibility of it being increased annually.
For residents on pensions, fixed incomes, or self-funded retirees, the fees and the prospect of them increasing may cause significant difficulties. It is pot luck what you get in a retirement village and what you have to pay for. There are hidden costs that people aren't aware of when they move in, e.
Most retirement village contracts contain provisions relating to 'Departure Fees'. This is usually a percentage of the entry contribution retained by the operator when the resident departs from the village. The percentage is usually 2. Several participants during the consultation process indicated that residents have previously expressed confusion over the method of calculation of such fees, and concerns regarding the size of the departure fees where the resident has had to leave a village soon after moving in. Under the Retirement Villages Act NSW , a former occupant of residential premises in a retirement village, who did not own their premises, is required to receive a refund of their entry contribution, less any monies owed, within six months of vacating the premises.
These situations can cause significant hardship, where residents have to move to other accommodation, and still remain liable for recurrent charges until their former premises are sold. At the same time they may have to pay the fees in their new residential facility. The difficulties associated with such contracts have been accentuated by a recent Residential Tribunal decision. The Tribunal held that in spite of the fact that most residents do not have a proprietary interest in their premises, the former occupant in this case was bound by their contract which contained a provision that the refund of the entry contribution is 'wholly dependent on the amount paid by an incoming resident'.
Disputes between residents and operators relating to responsibility for maintenance and repairing damage to premises, and delays in getting repairs carried out are not uncommon. Often residents believe that as lessees or licensees, they do not have an obligation to pay for the reasonable maintenance of the village out of the recurrent charges. The Department of Fair Trading has advised residents that the operator is responsible to pay out of its own funds for the replacement of fixed items of capital within the village, including fixed items of capital in the premises of residents unless the damage was caused by the resident or their guests, beyond normal wear and tear.
This includes replacing carpets, hot water systems, and stoves. In relation to non-fixed capital items such as a village bus, lawnmowers, tables, chairs, whitegoods, portable air conditioners, filing cabinets, computers, fans and curtains, the operator can use the recurrent charges paid by residents, or its own funds, to replace the items. If the operator wishes to spend recurrent charges in this way they must specify the item and the amount in the Statement of Proposed Expenditure given to residents before the start of each financial year.
The consent of residents is then required. In relation to maintenance of either fixed or non-fixed capital items, the operator can allocate funds when preparing a Statement of Proposed Expenditure, either from recurrent charges or from the village's long term maintenance fund.
TARS reports that it has received inquiries from residents who have executed contracts with an operator, requiring them to pay for the cost of structural rectification of their premises, necessitated by damage caused by termite infestation. In spite of this, TARS reports that many solicitors do not recommend to applying residents that they obtain pest inspection reports prior to signing their contracts.
TARS also reports that a failure on the part of an operator to maintain the village is a major area of dispute between residents and operators, and constitutes a withdrawal of services on the part of the operator. As retirement villages are a form of communal living, there is a requirement that residents comply with a set of village rules. TARS cited examples of village mismanagement which has resulted in significant losses of entry contributions by residents. A lack of prudential protection in the Retirement Villages Act NSW places a heavy onus on applying residents to obtain information and advice regarding the financial viability of the operator.
Situations where either residents or an operator propose a variation in services are a commonly reported area for disputes between operators and residents. Reduction in services can include reductions in the use of the village bus, closure of a dining room, reduction in care staff, and so on. The projects have similar features to retirement villages, but are not strictly retirement villages and operate outside of the provisions of the Retirement Villages Act NSW.
Individual units are then sold to investors who lease the units back to the entity. The entity then sub-leases the units to aged residents on a standard terms residential agreement prepared by the entity. According to TARS, all units are rented, with tenants paying 85 per cent of the standard aged pension plus per cent of their rent assistance allowance. TARS and OPTS report that the residential agreement with the entity will also include some additional clauses covering such things as the provision of three meals a day, provision of clean linen, special termination provisions and cleaning fees.
At the time of writing, eight of these aged accommodation projects were in operation across regional NSW, with a total of units. The CTTT adopts a less formal, expedient approach to dispute resolution, thus making it a more accessible means of dispute resolution than the formal court litigation process. It is not bound by the rules of evidence, but is required to adhere to the principles of procedural fairness.
The NSW Office of Fair Trading provides a range of printed and web based information concerning the rights of residents in retirement villages, including:. Some online information regarding retirement villages is available for residents from the website for the Retirement Villages Association of Australia RVAA. It provides accreditation to villages which meet the building and service standards set by the Association. The Retirement Villages Residents' Association RVRA is a non-profit, volunteer-run organisation which provides basic information, advice and referral for assistance to retirement village residents.
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The Association publishes a quarterly newsletter, and also provides basic telephone advice from other village residents. The RVRA aims to:. Many individual contributors reported examples of managing agents charging excessive fees, in return for delivering very few services. Examples of managing agents' dereliction of duties included failure to forward insurance claims, providing 'kick-backs' to tradesmen and suppliers, and failure to repair common areas.
Contributors also reported examples of older people who are strata title resident-owners who find that other units in their complex have been purchased by investor-owners. In such situations, the investor-owners may constitute the majority on the body corporate and propose resolutions for external renovations or improvements to enhance the investment value of their properties.
The resident-owners will then have to incur a substantial charge as part of their share, even though they may not have voted in support of the capital improvements. For older people who are on pensions or are self-funded retirees, who have no interest in increasing the capital value of their home, such charges may be prohibitive.
Individual participants reported that there was little information and advice available to residents regarding their rights and duties in relation to strata title schemes and body corporate bodies. The Home Unit Owners Association of NSW represents and advises proprietors and office bearers in both commercial and residential strata schemes.
Long waiting lists for public housing makes it difficult for older people to transfer to public housing, or to move to another area. The eligibility criteria for public housing applied by the Department creates difficulties for older people in their 70s. The OPTS reported that people in their 70s applying for public housing may be told by the Department to apply for private tenancy accommodation if it considers that the older person is sufficiently physically mobile to be able to search for such accommodation options.
The OPTS reported that the demands that such Department eligibility guidelines place on older people to look for alternative tenancy accommodation fails to take account of their frailty and vulnerability, and may amount to indirect age discrimination. Of the specifically designated public housing inquiries received by OPTS, 41 per cent related to issues about applications for public housing or applications for priority listing.
The OPTS reported that it is seeing an increased number of inquiries relating to the lack of repairs carried out by the Department of Housing, often due to inefficient bureaucratic processes. It reports that many of these inquiries are from long-term residents, where the premises are run down. The OPTS reported that in such cases the Department will not do the structural repairs and will not transfer the family. Instead they offer to transfer the tenant only, and refuse to acknowledge the full household composition. OPTS reported that 16 per cent of its overall inquiries in — related to complaints about repairs, although OPTS do not differentiate between public and private housing tenants in its data collection in relation to repairs.
The OPTS reported that these issues often arise from the fear and intimidation experienced by older people living in high density public housing, where they are in constant close proximity to residents who have high needs, such as people with psychiatric illness, young people or people who suffer from substance abuse. OPTS reported that 4 per cent of its inquiries in — related to neighbour issues, although it makes no differentiation between public and private housing tenants in relation to its data collection on this issue.
The OPTS reports that it receives complaints regarding terminations of lease arising from the actions of a co-occupant who may be a younger relative in need of temporary accommodation. OPTS reported that 28 per cent of its overall inquiries in — related to termination issues, although, as mentioned, it makes no differentiation between public and private housing tenants in relation to its data collection on this issue. The introduction of rental bonds for public housing tenancies has meant that tenants on fixed or low incomes, including pensioners, face increased vulnerability to termination of lease based on rent arrears.
For complaints regarding a failure by the Department to carry out repairs, a tenant can appeal to the CTTT. This does not include issues relating to rent, repairs, neighbour issues or terminations, for which OPTS does not differentiate between public and private housing tenants in their data collection.
Their application must address what impact their development will have on low cost rental accommodation in the local market. Applications are lodged with the local council and final approval is granted by the Department of Planning. In most cases consent will be granted with conditions. Conditions can include the following:. Some aged housing organisations have reported situations of evicted older tenants being unable to secure other tenancies, due to discrimination by real estate agents, in situations where they are able to afford the tenancy.
The OPTS reported that it receives complaints from older people that even though they would prefer the security of a long-term 12 month lease, many are forced to enter into 3 month leases, particularly where there is an interest by the owner to develop the site. The OPTS reported that in —, 17 per cent of the inquiries it received related to rent issues, almost half of which related to inquiries about rent increases being sought by landlords from their older tenants. The OPTS reported that in —, 28 percent of the inquiries it received related to termination issues, with the majority from long term tenants issued with 60 day termination notices.
As stated earlier, OPTS makes no differentiations between public and private housing tenants in relation to its data collection on this issue. However, it reports that in many private tenancy situations, the tenants have lived in the premises for over 20 years, and that many are aged in their 70s and cannot afford to relocate in the immediate area.
OPTS reported that often these are situations where the owner is wanting to develop the property. The OPTS states that in these circumstances, the landlord applies the same processes to terminate the lease for an older tenant, as it would for other tenants, with the expectation that the older tenant is equally able to find alternative accommodation, pack up their belongings, vacate the premises and move into new premises with the same ease as other tenants.
The standard format for citation of the Philippine Reports is:. As of present, Philippine cases are contained in quarterly issues. There are already over SCRAs in circulation. In the last few decades, the Philippine Reports has suffered from production problems, resulting in long delays in publication, as well as significant gaps within its published series. The proper format for citation of the Supreme Court Reports Annotated is:.
Owing to the delays in the regular publication of the Philippine Reports, reliance on the SCRA has been tolerated, although if a case may be found at the Philippine Reports, it is preferred that the official reporter be cited in lieu of the SCRA. Corona , G. As there are no official or unofficial reporters that regularly publish decisions of the Court of Appeals and other lower courts, citation of their decisions hews to the same format as cases not reported either in the Philippine Reports or the SCRA.
Thus: case name , docket number , Exact date of promulgation of decision. Citations vary by court and by language. Cases of the Swiss Federal Supreme Court are cited as follows: . In this example, is the annual issue of the court reports, II the part indicating the division of the Court, and the page on which the decision begins. Optionally, "E. Supreme Court decisions not selected for official publication are cited as Urteil [des Bundesgerichts] 5C.
In this example, 5C is the division of the Court, the case number and the year in which the case was opened. The citation style for cases of the inferior federal courts of Switzerland is similar. This system was extended to other parts of the High Court in Judgments with neutral citations are freely available on the British and Irish Legal Information Institute website www. Neutral citations identify judgments independently of any series of reports, and cite only parties, year of judgment, court and case number.
These abbreviations are generally followed by an abbreviation indicating the court or division e. Admin, Ch, Crim, Pat. If a neutral citation is available for a judgment, it should immediately follow the party names. This means that a report of the case and the judgment can be found in the volumes, vol 2, of the Law Reports series called Appeals Cases, beginning at page To cite a particular paragraph from the judgment, add the paragraph number in square brackets at the end of the citation:. In some situations, it might be preferable to cite a specialist series, e.
For cases before , cite the best report. If referring to a particular page of the judgment, give that page number after the page number on which the report begins. The following citation refers to page of the Donoghue v Stevenson judgment:. The standard case citation format in England and Wales is:. In England and Wales as with certain Commonwealth countries, the abbreviation "R" for rex king or regina queen , is used for cases in which the state is a party typically criminal cases or judicial review cases.
Square brackets "[ ]" are used when the year is essential to locating the report e. Round brackets " " are used when the year is not essential but is useful for information purposes, e. The term "reporter", meaning a law report or a series of them, is not widely used in England and Wales. Before , English courts used a large number of privately printed reports, and cases were cited based on which report they appeared in. This system was also used in the United States and other common law jurisdictions during that period.
In addition, a number of unofficial specialist law reports focus on particular areas, e. These have been published since These four series are cited in preference to all others in court. The table below is an incomplete list of law reports other than "The Law Reports", nominate reports and reprints. For nominate reports, see Nominate reports. The standard case citation formats in Scotland are:. The Supreme Court has issued a practice note on the use of neutral citation. Case citations are used to find a particular case, both when looking up a case in a printed reporter and when accessing it via the Internet or services such as LexisNexis or Westlaw.
This format also allows different cases with the same parties to be easily differentiated. For example, looking for the U. Supreme Court case of Miller v. California would yield four cases, some involving different people named Miller, and each involving different issues. A citation to the United States Reports looks like this:.
Many court decisions are published in more than one reporter. A citation to two or more reporters for a given court decision is called a "parallel citation". For U. Supreme Court decisions, there are several unofficial reporters, including the Supreme Court Reporter abbreviated S. Although a citation to the latter two is not required, some attorneys and legal writers prefer to cite all three case reporters at once:. The "2d" after the L. United States case reporters are sequentially numbered, but the volume number is never higher than When the 1,th volume is reached the threshold in earlier years was lower , the volume number is reset to 1 and a "2d" is appended after the reporter's abbreviation.
Some case reporters are in their third series, and a few are approaching their fourth. Some very old Supreme Court cases have odd-looking citations, such as Marbury v. Madison , 5 U. The " 1 Cranch " refers to the fact that, before there was a reporter series known as the United States Reports compiled by the Supreme Court's Reporter of Decisions , cases were gathered, bound together, and sold privately by the Court's Reporter of Decisions. In this example, Marbury was first reported in an edition by William Cranch , who was responsible for publishing Supreme Court reports from to Such reports, named for the individual who gathered them and hence called " nominative reports ", existed from to Beginning in , the U.
In this way, "5 U. The name of the reporter of decisions has not been used in citations since the U. When a case has been decided, but not yet published in the case reporter, the citation may note the volume but leave blank the page of the case reporter until it is determined.
For example, Golan v. Holder , U. In the caption of a Supreme Court case, the first name listed is the name of the petitioning appealing party, followed by the party responding respondent to the appeal. In most cases, the appealing party was the losing party in the prior court.
This is no longer the practice used in cases in the federal courts of appeal, in which the original alignment of parties from the lower court is preserved. United States court of appeals cases are published in the Federal Reporter F. United States district court cases and cases from some specialized courts are published in the Federal Supplement F. Both series are published by Thomson West ; they are technically unofficial reporters, but have become widely accepted as the de facto "official" reporters of the lower federal courts because of the absence of a true official reporter.
Of the federal appeals and district courts, only one, the D. Circuit , has an official reporter, United States Court of Appeals Reports , and even that one is rarely used today. When lower federal court opinions are cited, the citation includes the name of the court. This is placed in the parentheses immediately before the year. Some examples:. An example of the citation form is: Wheaton v. Peters , 29 F. State court decisions are published in several places. Many states have their own official state reporters, which publish decisions of one or more of that state's courts.
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Reporters that publish decisions of a state's highest court are abbreviated the same as the state's name note: this is the traditional abbreviation, not the postal abbreviation , regardless of what the actual title of the reporter is. Thus, the official reporter of decisions of the California Supreme Court titled California Reports is abbreviated "Cal. In addition to the official reporters, Thomson West publishes several series of "regional reporters" that cover several states each.
California , Illinois , and New York also each have their own line of Thomson West reporters, because of the large volume of cases generated in those states titled, respectively, West's California Reporter , Illinois Decisions , and West's New York Supplement. Some smaller states like South Dakota have stopped publishing their own official reporters, and instead have certified the appropriate West regional reporter as their "official" reporter. Abbreviations for lower courts vary by state, as each state has its own system of trial courts and intermediate appellate courts.
When a case appears in both an official reporter and a regional reporter, either citation can be used. Generally, citing to the regional reporter is preferred, since out-of-state attorneys are more likely to have access to these. Many lawyers prefer to include both citations. Some state courts require that parallel citations in this case, citing to both the official reporter and an unofficial regional reporter be used when citing cases from any court in that state's system.
Like the United States Supreme Court, some very old state case citations include an abbreviation of the name of either the private publisher or the reporter of decisions , a state-appointed officer who originally collected and published the cases. For example, in Hall v. Bell , 47 Mass. An example of a case cited to a reporter that has not been subsequently incorporated into an officially published series is Pierson v. Post , 3 Cai. Most states gave up this practice in the mid-to-late 19th century, but Delaware persisted until Some states, notably California and New York , have their own citation systems that differ significantly from the various federal and national standards.
Both New York and California styles wrap an entire citation in parentheses when used as a stand-alone sentence, although New York places the terminating period outside the parentheses, whereas California places it inside. New York wraps just the reporter and page references in parentheses when the citation is used as a clause. Both systems use less punctuation and spacing in their reporter abbreviations. For example, assuming that it is being placed as a stand-alone sentence, the Brown case above would be cited using the official reporter to a New York court as:.
And, again, as a stand-alone sentence, the famous Greenman product liability case would be cited to a California court as:. A growing number of court decisions are not published in case reporters. This is mainly because judges certify only significant decisions for publication, due to the massive number of frivolous appeals flowing through the courts and the importance of avoiding information overload.
It is also argued that this is in part because in many states, especially California, the legislature has failed to expand the judiciary to keep up with population growth for various political and fiscal reasons. To deal with their crushing caseloads, many judges prefer to write shorter-than-normal opinions that dispose of minor issues in the case in a sentence or two. They avoid publishing such abbreviated opinions, however, so as not to risk creating bad precedents.
Some court systems—such as the California state court system and the federal Court of Appeals for the Second , Seventh , and Ninth Circuits —forbid attorneys to cite unpublished cases as precedent. Other systems allow citation of unpublished cases only under specific circumstances. For example, in Kentucky , unpublished cases from that state's courts can only be cited if the case was decided after January 1, , and "there is no published opinion that would adequately address the issue before the court".
From to , federal judges debated whether the Federal Rules of Appellate Procedure FRAP should be amended so that unpublished cases in all circuits could be cited as precedent. In , the Supreme Court, over the objection of several hundred judges and lawyers, adopted a new Rule The rule took effect on January 1, With the rise of the web, many courts placed new cases on websites.
Some were published while others never lost their "unpublished" status. The major legal citation systems required cites to the officially published page numbers, in which publishers such as West Publishing claimed a copyright interest. A vendor-neutral citation movement  led to provisions being made for citations to web-based cases and other legal materials.
A few courts modified their rules to specifically take into account cases "published" on the web. In practice, most lawyers go one step farther, once they have developed the correct citation for a case using the rules discussed above. Most court opinions contain holdings on multiple issues, so lawyers need to cite to the page that contains the specific holding they wish to invoke in their own case.
Such citations are known as pinpoint citations, "pin cites", or "jump cites". For example, in Roe v. Wade , the U. Supreme Court held that the word "person" as used in the Fourteenth Amendment does not include the unborn. That particular holding appears on page of the volume in which the Roe decision was published. A full pin cite to Roe for that holding would be as follows:. And a parallel cite to all three U. Supreme Court reporters, combined with pin cites for all three, would produce:.
But in its opinions, the Court usually provides a direct pin cite only to the official reporter. The two unofficial reporters, when they reprint the Court's opinions, add on parallel cites to each other, but do not add pin cites. Therefore, a citation to Roe v. Wade in a later Supreme Court decision as viewed on Lexis or Westlaw would appear as follows:.
Even then, such citations are still quite lengthy, and may look quite mysterious and intimidating to laypersons when they read court opinions. Since the s, there has been an ongoing debate among American judges as to whether they should relegate such lengthy citations to footnotes to improve the readability of their opinions, as strongly urged by Bryan A. Garner , one of the leading authors on legal writing and style. Most judges do relegate some citations to footnotes, but jurists such as Justice Stephen Breyer and Judge Richard Posner refuse to use footnotes in their opinions.
There are two types of citations: proprietary and public domain citations. Public domain citations refer to the official reporters, rather than a publication service such as Westlaw , LexisNexis , particular legal journals, or specialization-specific reporters. States with their own unique style for court documents and case opinions also publish their own style guides, which include information on their citation rules.
From Wikipedia, the free encyclopedia. Various case citations redirect here. If you are looking for the text of an opinion, you may find it in the external links at the bottom of the article on that case. For Wikipedia's template for citing cases, see Template:Cite court. For a more comprehensive list, see List of Law Reports in Australia. Andersen, Mads Bryde Biao v. Denmark , no. Main article: German legal citation. Main article: Non-publication.
Black's Law Dictionary 9th Abridged ed. Paul, Minnesota: West. A case can be pronounced in a number of ways, e. Australian Guide to Legal Citation 3rd ed. In speech, the 'v' between the parties' names is rendered 'and' in a civil action and 'against' in a criminal action both in Australia and the United Kingdom.
It is not pronounced 'versus' as it is in the United States of America. The New York Times. June 4,
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