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EDITORIAL
This year marks the fourth consecutive year that World Elder Abuse Awareness Day has been
acknowledged on the 15th June. It was the United Nations' intention that Member States take
concrete measures to further protect and assist older persons. In reflecting on the introduction
of such a resolution, the articles in this year's edition of the Elder Law Review, appropriately
themed 'Rights of the Older Individual' encapsulate some of the ideas associated with the
rights of the older person and means to ensure that such rights are recognised. In observance
of this theme, Seniors Rights Victoria are holding the 4th National Elder Abuse Conference
from 23-25 February 2016. Seniors Rights Victoria have provided a short description of what
the program will entail, focusing on the rights of older people to live life free from ageism
and elder abuse. The program will include suggested preventative measures, discussion of
earlier interventions and collaborative approaches to tackling elder abuse.
Equality before the law is fundamental to the exercise of our core human rights and is
guaranteed to all persons by the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights. A human rights approach to the
assessment of legal capacity may offer improved legal protections for the older person and is
advocated in the Australian Research Network on Law and Ageing's draft Charter of Rights
and Freedoms for Older Persons. Susannah Sage-Jacobson and Lise Barry by analysis of
current decision making models for the older person in Australia demonstrate how ad hoc
capacity assessments have resulted from a legal system that has not kept pace with the
complexity of an ageing population. The authors conclude that older people in Australia who
experience temporary or permanent decision making disabilities would benefit from the
application of a more nuanced, human rights focus to the law of decision making.
The feature article of this edition is the Honourable Justice Geoff Lindsay's treatise on
management of life, death and estate administration. Lindsay J discusses the historical
boundaries between the Court's Protective, Probate and Family Provision jurisdictions in
protecting the individual and how they are increasingly likely to be blurred in our current
environment. Lindsay J emphasises the need to focus on the purposive nature of each branch
of the Court's jurisdiction and gives guidance to assist in avoiding some of the pitfalls
commonly encountered in administration of the Court's business.
In discussing the rights of the older individual and how to ensure those rights are recognised
and remedied John Armfield, Barrister, examines the relevant case law in relation to the
interaction between equitable claims in the context of estate disputes and family provision
legislation. The paper focuses on equitable estoppel ad family provision legislation, in
particular estoppel arising from representations which are relied upon to the detriment of a
party to whom they were made and constructive trusts which arise from contracts to make
wills.
In keeping with the inclusion of updates to case law and various legal services in previous
editions of the journal, Mary-Ann de Mestre discusses the case of Nicholson v Knaggs [2009]](ViewImageLocal?handle=hein.journals/elr9&div=1&collection=&method=preview&ext=.png&size=3)
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