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Elder Law in New Zealand

27 February 2015

General Editors Kate Diesfeld and Ian McIntosh

Reviewed by Jennifer Moore

The image of the elder flower on the front cover of Elder Law in New Zealand is appropriate and clever. The white flowers optimistically suggest hope, and a promising future for New Zealand’s elderly population. The image evokes the book’s central aim, which is to encourage New Zealand to adopt a preventive role in avoiding the legal issues that are often associated with ageing (p 28, p 507).

As the first specialist text on elder law in New Zealand, this multidisciplinary collection of papers makes a substantial contribution to theory and practice. The ageing population in New Zealand, its economic impact, and the legal complexities associated with ageing, have prompted policymakers to identify ageing as a government priority. It is timely and imperative to publish a book on this blossoming legal field.

The authors “aim to build legal expertise and alliances in preparation for the growing proportion of older people in New Zealand” (p 12). The diverse backgrounds of the book’s contributors capture these alliances. Chapters are written by academics, activists, social scientists, health professionals and lawyers. The book’s treatment of the legal issues is excellent. However, law is not the book’s sole focus. That is appropriate because the ageing population is creating not only legal, but also social, economic, and health challenges. This book tackles these challenges.

In keeping with the breadth of the field, the book explores the reforms that will be required not only to the legal system, but also the health system and society. The book also highlights that law reform, alone, is unlikely to resolve the complexities presented by an ageing population. Contributors argue that cultural and attitudinal shifts are also required (p 510, p 529).

This cultural shift requires New Zealanders to reconceptualise older people as a diverse population (p 13). Decline in the physical and mental health of everyone who is 65 years of age or older should not be presumed. As Professor Diesfeld asserts, elder law comprises the case law and policy that is relevant to those who are “in the latter stages of the lifespan”; it is not “the law associated with decline or decrepitude” (p 13). ‘Elder law’ can be defined as the “body of law, jurisprudence and policy that is invoked for people who are 65 years of age or older” (p 23). Chronological age may be an arbitrary guide. Certain groups, such as older people with intellectual disabilities, face age-related changes at an earlier age, sometimes in their 50s (p 546). Overall, ‘the elderly’ are typically described as a “vulnerable population” deserving of legal protections and, in particular, a “preventive law” approach (p 15).

The book is divided into nine thematic parts. Although the nine parts are different, there are inextricable links and many of the authors refer the reader to related chapters. The disparate, yet interconnected nature of elder law highlights the importance of combining all these strands into a single book. According to several of the book’s contributors, the legislation relating to the elderly is complex, and the policy information is scattered across multiple sectors. Therefore, Ian McIntosh recommends the consolidation onto a single website of all the information (about, for example, pensions and benefits) that is relevant to older people (p 271).

Elder Law in New Zealand provides excellent commentary on a broad range of themes. It is rarely, if ever, possible to cover all topics in a single book. An area which the editors may wish to consider for the second edition is an analysis of coroners’ investigations involving the elderly. As an academic with content expertise in coronial law, it was difficult for me to ignore this omission! (Coronial law is briefly mentioned on pages 119, 169 and 518). This area is arguably vital given the book’s concern with prevention, and “information and education for the foundations of ongoing development of Elder Law” (p 24). The book emphasises that “preventive strategies can be developed” by analysing information from agencies such as the Health and Disability Commissioner and the Human Rights Commission (p 24). The Coroner’s Court should be added to this list. The importance of coronial inquiries as a source of information for this field is highlighted by one of the contributors who notes that Consumer NZ is compiling a list of rest homes that have had complaints investigated by the Ministry of Health, the Health and Disability Commissioner, a DHB, or a coroner (p 518).

Elder Law in New Zealand will be appealing to a general, academic and practitioner readership. The book aims to be a “teaching tool” (p 12). It will make a crucial contribution to the continuing education of students, and also legal and health practitioners. Readers would benefit from reading the entire text, but it is also possible to select chapters of particular interest. One of the social scientist contributors, Dr Sally Keeling, argues that “this book deserves to become a useful resource to support and inform conversations in every household, family and community in New Zealand” (p 9). I agree. Aged concerns will touch the lives of all New Zealanders. The personal scenarios (pp 3-9) and vignettes (p 533) that are described in the book vividly illustrate the legal issues faced by the elderly population and those who care for them. It is hoped that this book encourages recognition of elder law as an important and specialist branch of legal practice. Elder Law in New Zealand has the potential to facilitate a “mature society not simply an aged one” (p 4).

Elder Law in New Zealand, Thomson Reuters New Zealand Ltd, December 2014, 978-0-864728-91-3, 633 pages, paperback, $150 (GST and p&h excluded).

Dr Jennifer Moore is a senior lecturer in the Department of Preventive and Social Medicine, Faculty of Medicine, University of Otago. She is also a Senior Research Fellow and the Acting Director of the Legal Issues Centre in the Faculty of Law, University of Otago. She is a barrister and solicitor of the High Court and a member of the NZLS Health Law Committee. Dr Moore is the 2015-2016 NZ Harkness Fellow (Stanford). She specialises in empirical health law research.

Last updated on the 17th March 2016