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  • Elderly People and the Law
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Elderly People and the Law


This book provides a narrative explanation of the many areas of law that impact on elderly clients

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Elderly People and the Law podcastWatch the video by Gordon Ashton OBE and Caroline Bielanska  

Dealing with the rights, duties and needs of older people raises special challenges for those who advise and assist the elderly. A proper understanding of the problems they face and their particular needs is essential.

 Elderly People and the Law, written by two leading lawyers who have championed the rights of elderly people throughout their careers, provides expert guidance on the whole range of legal issues relating to older people including:
  • Mental capacity
  • Legal rights and duties
  • Family and carers
  • Housing
  • Residential care
  • Community care
  • Health care
  • Challenging the Authorities
  • Financial affairs
 Elderly People and the Law is a comprehensive work providing detailed and practical guidance suitable for lawyers and other professional advisers.
Foreword to the First Edition
Preface to the Second Edition
Preface to the First Edition
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Abbreviations
Distinguishing Older People

Role of the Law
Equal access to justice
  • Preliminary
  • Coping with older people
  • Preliminary
  • Equality Act 2010
  • Prohibited conduct
  • Implications of conduct
Human rights
  • Introduction
  • The European Convention
  • Human Rights Act 1998
Competence and decision-making
  • Preliminary
  • Mental incapacity
  • Assessment of capacity
  • Decision-making
The Mental Capacity Jurisdiction
  • The reform process
  • Legislation for England & Wales
The principles of the Mental Capacity Act 2005
  • Preliminary
  • Overriding principles
  • People who lack capacity’
  • Best interests
General powers and duties
  • Acts in connection with care or treatment
  • Financial affairs
  • General safeguards
Procedures of choice
  • Enduring powers of attorney
  • Lasting powers of attorney
  • Advance decisions
Powers of the Court of Protection
  • Overview
  • Declarations
  • Decisions and deputies
  • Control of attorneys
The court and supporting services
  • Overview
  • Court of Protection
  • The Public Guardian
  • Court of Protection Visitors
  • The Official Solicitor
  • Court Funds Office
  • Independent Mental Capacity Advocates
Other Resources
  • Medical Research
  • Deprivation of liberty safeguards
  • International protection of adults
The Older Person
Rights and duties
  • Preliminary
  • Contract
  • Elderly people as trustees
  • Civil status
  • Civic duties
  • Civil responsibility
Work and leisure activity
  • Preliminary
  • Employment
  • Self-employment
  • Voluntary work
  • Education
  • Holidays and travel
Court proceedings
  • Preliminary
  • Procedures
  • Mental capacity
Criminal responsibility
  • Preliminary
  • Safeguards
  • Prosecution
Family and Carers
Personal relationships
  • Preliminary
  • Marriage
  • Civil partnership
  • Cohabitation
  • Children
  • Preliminary
  • The role of carers
  • Status of carers
Elder abuse
  • Overview
  • Civil remedies for abuse
  • Criminal remedies
  • Intervention by the authorities
  • Owner occupation
  • Long leases
  • Tenancies – private sector
  • Tenancies – public sector
  • Licences
  • Possession proceedings
Special provision
  • Homeless persons
  • Special housing
Special arrangements
  • Sharing the home
  • Sharing another home
  • Gifts of the home
  • Equity release
Specific situations
Residential Care: Regulation, Choice and Contracts
  • Role of the adviser
The regulatory framework
  • Legislation
  • Registration
  • Inspection
  • Enforcement
  • The First-tier (Care Standards) Tribunal
Moving to a care home
  • Choice of care home
  • Care contracts
Community Care
The policy
  • What is ‘Community Care’
  • Reports
  • Implementation
  • Legislation
  • Directions and guidance
Role of the authorities
  • Local authorities
  • The National Health Service (NHS)
  • Health and Wellbeing Boards
  • Healthwatch
  • Ordinarily resident
  • No settled residence
  • NHS Continuing Health Care
  • Discharge under Community Care (Delayed Discharges etc.) Act 2003
  • Deprivation of Liberty Safeguards
  • Disputed ordinary residence
  • Strategic planning
  • The private sector
  • Safeguarding vulnerable adults
Getting assistance
  • Gate-keepers
  • Objective
  • The context of an assessment
  • Assessment for services
  • Carers assessments
  • Eligibility criteria and the question of resources
  • The written record of the assessment and the care or support plan
  • Choosing between care packages
  • Provision of residential accommodation
  • Non-accommodation (home or community based) services
Reform to social care
  • The Care Bill 2013
Health Care
The National Health Service
  • Preliminary
  • Structure and services
  • NHS continuing health care
  • Community health care
  • Hospital care
Medical treatment
  • Consent to treatment
  • Best interests
  • Advance decisions
  • Health and welfare lasting powers of attorney
  • Allowing the patient to die
Mental health
  • The scope of mental health law
  • Source of law
  • Mental health assessments
  • Definitions
  • Admission to a hospital or care home
  • In hospital informally
  • Community powers
  • Supervised Community Treatment
  • Medical treatment
  • Discharge from MHA 1983 detention
  • Mental Health Tribunal
  • Monitoring detention
  • Deprivation of liberty
Challenging the Authorities
Accessing information
  • The common law duty of confidentiality
  • Medical reports
  • Data protection
  • Freedom of Information Act 2000
Complaints procedures
  • Background
  • Complaints in England
  • Complaints in Wales
The Ombudsman
  • Types of Ombudsman
  • Complaining to an Ombudsman
  • Maladministration
Other challenges
  • NHS continuing health care claims
  • Default powers
Legal remedies
  • Preliminary
  • County court
  • Judicial review
  • European Court of Justice (ECJ)
  • European Court of Human Rights
Financial Affairs
Personal funding
  • Preliminary
  • Pensions
  • Taxation
Welfare benefits
  • Overview
  • Contributory benefits
  • Non-contributory benefits
  • Income based benefits
  • Challenging the DWP
Funding community and residential care
  • Charging for non-accommodation services
  • Paying for residential care
Financial Affairs and Incapacity
  • Preliminary
  • Wefare benefits
  • Miscellaneous
Powers of attorney
  • Preliminary
  • Enduring power of attorney
  • Lasting power of attorney
Court of Protection
  • Deputies
  • Gifts, settlements and wills
Handling financial affairs
  • Preliminary
  • Preparing for old age
  • The work in practice
Testamentary Provision and Death
Provision of choice
  • Preliminary
  • Gifts
  • Succession
  • Wills
  • Intestacy
  • Financial provision for a dependent relative
Provision after death
  • Preliminary
  • Voluntary provision
  • Inheritance provision
  • Claims based on an estoppel
  • Disputed wills
Matters arising on death
  • Preliminary
  • Registration
  • Role of coroners
  • Funeral arrangements
  • Disposal of the body

Useful publications
"a compendious and above all practical guide to almost every conceivable legal issue that can could arise from the perspective of either those in or concerned with the welfare of that somewhat nebulous but extremely important group of 'the elderly.' ... the book would serve as a useful primer for anyone wishing a broad overview of the core components of the law relating to adults of any age with potential vulnerabilities ... I would unhesitatingly recommend that this book should take up an immediate place on the bookshelf of advisors (both in the private and public sectors) concerned with this vitally important area."

Mental Capacity Law and Policy

"An especially outstanding example ... well established and authoritative practitioners' guide to a diverse and difficult subject ... If you are a practitioner or indeed anyone advising the elderly on a range of legal matters, you'd do well to acquire this reliable, authoritative and up-to-date volume as the mainstay of your professional library."
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers 
Watch the full review click here
Read the full review click here

"a valuable treatise in the field of the law and its impact and effect on older people in England and Wales ... this book is a 'must read' and a 'keeper' for ready reference ... I found the reminders of the general duties and responsibilities of the practitioner very helpful ... recommended reading for attornerys, deputies, social workers, care providers, health professionals and carers, as well as legal practitioners. Readable, informative and authoritative in its breath and depth, it even makes enjoyable reading"

Elder Law Journal
Read the full review


 Gordon Ashton

 ‘Forty is the old age of youth; fifty the youth of old age.’
        Victor Hugo

 Old age should not be seen as a problem – it is a fortunate reality of life for an increasing number of people. A changing social climate has provoked a new legal environment. It is the attributes of older people rather than their age that may justify special treatment by the law.

 0.1 People are living longer and the number of elderly people in the UK is increasing. Most are able- bodied and of sound mind, but many will at some stage become dependent upon others and perhaps also unable to make their own decisions. Policies in regard to their care and treatment have changed, the emphasis now being upon care in the community which points to an enhanced role for the law in respect of those who might previously have been cared for within a non-complaining family or ‘institutions’ imposing their own rules. In a consumer oriented society the individual or a carer is more likely to challenge decisions made by the authorities in regard to the provision of financial or other support or medical treatment. Human rights are at the forefront of legal thinking and discrimination is outlawed. Wider home ownership, greater personal savings, private pension provision and social security payments result in an increase in the number of elderly people who have property and income that need managing and, in many cases, passing on to the next generation. There are more opportunities for the abuse of older people, but this is coupled with greater awareness of the existence of abuse and willingness to tackle it.

 0.2 Dealing with the legal rights, duties and needs of older people raises special challenges. An understanding of the problems they face and their special needs is essential, so we start by outlining some of these. We ascertain what it is about them that justifies their treatment as an identifiable group. Then in later chapters we consider how the law and the legal system may play its part in fulfilling society’s expectations as to the preservation of the rights of older people and of other members of the community in their interaction with one another.

The population of the UK is growing in size and becoming increasingly older as people are living longer. According to the Office of National Statistics1 over the period 1985–2010 the number of people aged 65 and over in the UK increased by 20% to 10.3 million; in 2010, 17% of the population were aged 65 and over compared with 7.5% over 60 at the turn of the 20th century. Population ageing will continue for the next few decades. By 2035 the number of people aged 85 and over is projected to be almost 2.5 times larger than in 2010, reaching 3.5 million and accounting for 5% of the total population. The population aged 65 and over will account for 23% of the total population in 2035, while the proportion of the population aged between 16 and 64 is due to fall from 65% to 59%. Population ageing brings potential benefits but also challenges to society. Key policy areas are health and social care, the ageing of the workforce and pensions, housing and transport.

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