The Dilemma of Elderly

Australia, ranking as the world’s sixth-largest country by land area, is an economically developed nation that is currently facing the challenge of an aging population. The proportion of Australians aged 65+ is continuously increasing, placing a growing burden on the younger workforce.

In the past 70 years, the proportion of people aged 65+ has doubled, and according to the latest annual population report by the Department of the Treasury, this trend is expected to accelerate. The aging population is primarily due to increased life expectancy and declining birth rates. The large baby boomer generation has contributed to Australia’s aging population. The direct consequence of this trend is the challenge of retirement and elderly care.

The Inescapable “Power of Attorney”

The Australian Human Rights Commission has published a booklet titled “Your Rights At Retirement: A guide to making decisions and navigating you through your later life.”, to explain the rights of older Australians and provide early preparation for potential issues. After all, various services, support, and decisions in retirement can be complex—such as income assistance, healthcare and aged care, senior cards, financial planning, retirement funds, housing, and rent subsidies, just to name a few. One common issue many older people may encounter is the establishment of a “Power of Attorney.”

As one grows older, there may come a time when they believe that designating someone else to make decisions on their behalf is in their best interests. This is commonly known as establishing a “Power of Attorney,” particularly when individuals are affected by conditions that impair decision-making or when they anticipate a future loss of decision-making capacity. In most cases, individuals grant a “Power of Attorney” to a trusted family member or chosen lawyer, government public trustee, or a combination of these individuals. It is crucial to take steps to establish a Power of Attorney well before losing the capacity to make independent decisions. If a person loses decision-making capacity before establishing a Power of Attorney, the government will appoint someone to make decisions on their behalf.

The Power of Attorney is a convenient but often overlooked legal arrangement. Especially with an Enduring Power of Attorney (POA), which allows an appointed person to act on behalf of the individual when they are unable to attend or have unfortunately lost cognitive/behavioral capacity. For instance, patients with severe dementia can appoint an enduring attorney while they are still of sound mind, enabling the appointed person to handle all matters related to medical care and property if the elderly person’s condition deteriorates and they lose mental clarity. This is particularly important for new immigrants, as many elderly Chinese individuals assume that their children will naturally handle their affairs, without realizing that the Australian system requires formal documentation of power of attorney to allow the appointed person to make decisions or handle medical and financial matters on behalf of the individual.

/Public guardians violating individual wishes and forcibly keeping elderly dementia patients in nursing homes

The Prisoners of the Country

System designs are ultimately ideal visions of humanity, but once they enter real life, the scenarios become diverse and complex. Not everyone has the foresight or awareness, nor the resources, to proactively plan their retirement affairs in a clear and explicit manner. So what happens when their health deteriorates? A recent report by ABC has prompted a reconsideration of the practical application of the “power of attorney” system. It’s hard to believe that such a story unfolds in Australia, a country known for its freedom, giving the impression of living in a nation without democratic liberties, unable to assert any individual rights.

The protagonist of the story is a man in his 70s from Western Australia who was diagnosed with suspected dementia in 2021. He has been forcibly confined in a nursing facility for over 16 months, incurring an annual cost of over AUD 75,000, and the crucial part is that this decision was not based on his personal wishes. The man’s brother, who served as his appointed representative, exercised his authority and placed him in the nursing facility against his will, despite his desire to remain living independently at home, as suggested by his family doctor.

Once admitted to the nursing facility, his brother no longer wanted to assume the responsibilities of being the appointed representative, and the facility handed him over to the government-appointed public trustee. The elderly man requested access to his own medical and financial information, but these are managed by the public trustee due to his diagnosis of dementia. He was denied access to his own healthcare and financial information, all in the name of protecting him. Currently, this elderly man is primarily under the control of two West Australian government agencies: the public trustee and the public advocate’s office. During a hearing held in February last year, there were no reports from geriatricians or psychiatrists regarding his dementia, nor any formal capacity assessments. The only medical evidence came from the nursing facility’s affiliated general practitioner, which led to the court’s final determination that the elderly man was “incapable of making reasonable judgments” and “unable to care for his own health and safety”. The Administrative Appeals Tribunal also confirmed that the court does not require expert evidence and that reports from general practitioners are often used as evidence. This raises doubts as to whether relying on evidence from the nursing facility poses a conflict of interest.

The plight of this elderly man is not an isolated case; it is happening to thousands of Australians. According to the law, if a person is deemed incapable of self-care and lacks family or friends to provide care, they will be assigned a public trustee and a public advocate. In Australia, every state and territory, except for the Australian Capital Territory, has similar laws, and it is estimated that 50,000 Australians with brain injuries, dementia, mental illness, or intellectual disabilities live under such orders. The public trustees manage over AUD 13 billion in assets belonging to these individuals, extracting millions of dollars in fees from their accounts annually, but due to privacy requirements, all of this is done behind a veil of secrecy.

Many people point out that while state governments establish public trustees, they do not provide funding, instead directly extracting fees from the assets of those under protection. This allows public trustees to view individuals with significant assets as cash cows, rather than acting impartially to protect them. It seems that in the case of this elderly individual, his substantial assets have become a means for the public trustee to violate his wishes and “imprison” him in a nursing facility.

Reform Cannot Be Delayed

Old age dementia, medically known as Alzheimer’s disease, requires guardianship and financial management for patients who have lost self-awareness. Although the medical field has devoted significant resources to research on treating dementia, there have not been significant breakthroughs so far. The period from September 1st to September 30th is Dementia Awareness Month, and it is important to recognize that old age dementia is not a normal part of aging. However, the Alzheimer’s Australia organization predicts that Australia will have approximately one million dementia patients by the middle of this century. The issue of caring for this population cannot be ignored.

Although individuals with dementia experience impacts on their memory, thinking, and daily functioning, it does not mean that their human rights should be violated. In other words, individuals with dementia should not be subjected to insults, discrimination, harm, or neglect. This raises the question of who determines the “best interests” of these elderly individuals and what role their own wishes play in the decision-making process. Over time, the condition of dementia patients deteriorates, but each case is unique. For patients in the early stages of the disease, whether it is in line with human rights to deprive them of the right to make decisions regarding their own affairs warrants discussion. Moreover, when it comes to a person’s well-being, a simple medical certificate may not be sufficient to legally determine their loss of cognitive capacity. Court assessments of whether someone is capable of making decisions regarding their health and finances or whether they require assistance need not only more evidence but also consideration of personal circumstances.

The current system of public trusteeship has been heavily criticized for its lack of accountability, high fees, and higher fees charged to those with assets. They have control over significant financial matters with minimal scrutiny, which undoubtedly constitutes a major intrusion into individuals’ lives, for which the government must assume its corresponding responsibility. Furthermore, as Australia is an immigrant society, older immigrants from diverse cultural backgrounds face additional challenges due to language, culture, and traditions. In recent years, with the release of the Royal Commission into Aged Care Quality and Safety final report, the call for significant reforms in Australia’s aged care industry has been growing. Fundamental reforms are urgently needed, whether in the aged care system itself or in its operations, funding support, and regulatory methods.

The Dilemma of Chinese Elderly

The Chinese community has limited and long-term understanding of the rights of the elderly, mainly due to the fact that most Chinese immigrants arrived in Australia in the late 1980s. Before the 1990s, Chinese immigrants were mostly in their thirties or forties, and there were not many elderly individuals at that time. The most well-known organizations that many people participate in, such as the The Chinese Senior Citizens Club of Manningham and the Box Hill Senior Citizens Club, celebrated their 35th anniversary last year, indicating that there were more 60+ aged Chinese seniors settling in Melbourne around 1987. Many times, they live with their children, and their lives are taken care of by the next generation.

However, the influx of Hong Kong immigrants in the 1990s and the trend of Chinese students immigrating after 2000, coupled with China’s one-child policy, led to the phenomenon of parents of international students becoming de facto retired immigrants. Suddenly, the number of Chinese seniors over the age of 60 increased significantly. Today, these seniors are in their 80s, and whether it is their care or issues related to illness, personal care, and their rights, it is evident that the Chinese community is ill-prepared.

Although the children of these seniors have received education in Australia, they may not be familiar with the Australian social system due to their relatively short time living in the country. When their parents encounter problems in managing their lives, they may not be able to assist them in finding solutions. If there are strained relationships with their children, if they do not live with their parents, or if they do not meet frequently, these seniors are easily left without assistance in their daily lives, and may not be able to find the best arrangements for themselves.

From Social Life to Care and Rights

Yes, indeed, for the past 35 years, the Chinese community has established numerous senior associations that have taken care of the social lives of elderly individuals. We have witnessed many seniors leading vibrant and colorful lives. Those who enjoy socializing have senior clubs, various educational classes, volunteer participation, performance groups, or church groups. However, as these seniors begin to experience physical decline, they require more care facilities and greater support in their daily lives. All of these aspects involve senior rights and personal life management.

Knowledge in this area is not widely introduced within the immigrant community, so most seniors are unaware and uninformed. Even mainstream society recognizes that senior rights are not adequately protected. It is time for us to pay more attention to the rights of our seniors and ensure that they can enjoy a safe and happy life in their later years after immigrating to Australia.