Whilst Australia has a widely recognised ageing population, the term ‘elder’ for the purposes of Elder Law is not defined at common law or in statute. In fact, the term ‘elder’ has no real legal meaning at all. Socially, the definition can also be difficult given the significant increase in average life span and the steadily increasing retirement age.
These obscurities aside, Elder Law is a recognised practice area that is rapidly developing within Australia. As such, it is important to understand who could be defined as an elder at law. To assist in defining the term ‘elder’, the Queensland Law Society has identified a number of State and Federal legislative provisions that are age-specific. The United Nations Population Fund Reports and general governmental policy documents on Australia’s ageing population can also be useful. These are outlined briefly below.
Pension Age
Firstly, regard can certainly be given to the pension age as provided by section 43 of the Social Security Act 1991 (Cth). For men, the pension age is 65 years and over whilst for women it is between the ages of 60 and 65, conditional on birth year. For women born before 1 July 1935 the pension age is 60 and for women born after 1 January 1949 it is 65. Notably, pension age is also five years earlier for veterans.
If you are of pension age, then Elder Law can apply to you. Upon retirement and access of the Aged Pension, there are significant decisions to be made that require forward planning. This includes potentially downsizing from your existing home and revising existing estate planning documents for your future.
Preservation Age
Secondly, regard can be given to a person’s superannuation age. This is known as ones preservation age. The preserved component of superannuation can generally only be accessed for people over the ages of 55 to 60. Again, this depends on the year of birth.
If you are of preservation age, Elder Law can certainly apply. Again, once reaching preservation age there are significant decisions to be made, such as asset protection, and indeed asset preservation. This can come within the ambit of Elder Law and lawyers and financial planners can offer considerable services in this area.
Elder Abuse as Serious Assault
Thirdly, an assault committed against a person aged 60 years and older constitutes a serious assault if committed against a person over 60 years of age as provided by section 340(1)(g) of the Criminal Code 1899 (Qld). This can relate specifically to Elder Abuse claims and the provision has significant implications for sentencing the offender.
Intergovernmental and Governmental Documents
Finally, given the international ageing population, there is also a plethora of governmental and intergovernmental policy documents and reports on ageing. Firstly, the United Nations has long recognised that there is an ageing population globally. In monitoring the ageing population, the Population Fund Reports generally assess the international ageing population from as low as 60 years of age and increasing incrementally to 80 years and over.
Secondly, the Australian Government has also produced extensive documentation on Australia’s ageing population, such as the Intergenerational Report. This Report projects that within the next 40 years the proportion of Australia’s population aged over 65 years will almost double to approximately 25 percent. This is in line generally with the Australian pension age criteria.
Conclusion
Overall, whilst relatively ambiguous there are a number legislative provisions, policy documents and reports that indicate that at approximately 60 years of age one could be considered an elder for the purposes of Elder Law. If you are nearing retirement age or are making decisions about your superannuation, Elder Law could be relevant and it is important to seek advice accordingly.
How can Nautilus assist?
Nautilus practices in Elder Law and has a team with significant experience in this area. If you would like more information on this area of law or have a specific concern, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.
Submitted by: Katrina E. Brown BA JD ATIA TEP SSA
