Portrait of smiling older male

Your rights and enduring power of attorney

Everyone has recognised rights that don’t expire as you age, regardless if you live alone or with others, have capacity or have lost it, receive aged care or manage independently, you still have rights.

Last updated: 10 February 2022

Everyone has rights that are based on principles of dignity, equality and mutual respect. The Australian Human Rights Commission says that ‘human rights’ are about ‘being treated fairly, treating others fairly and having the ability to make genuine choices in our daily lives.

A person’s rights don’t cease when they get older. Whether you live alone or with others, have capacity or have lost it, receive aged care or manage independently, you still have rights.

Understanding and considering your rights when planning for your future may give you the best opportunity to live your later years in maximum wellbeing and security.

Human rights for older people

In 1991 the United Nations presented principles for protecting the rights of older people.

They are called The United Nations Principles for Older Persons, and they identify an older person’s right to:

  • Independence (for example, have access to food, water, shelter, clothing, health care, family and community support, self-help, work and income opportunities, education, safe and adaptable environments, maximum residence at home)

  • Participation (for example, be able to take part in policy-making, community service and social peer group opportunities)

  • Care (have access to family and community care, health care, social and legal services, appropriate institutional care, and fundamental human rights when receiving care)

  • Self-fulfilment (be able to pursue opportunities for self-development and have access to society’s educational, cultural, spiritual and recreational resources)

  • Dignity (be able to live in dignity and security without exploitation and abuse, and be treated fairly)

In Australia, human rights can be a complex subject, as there isn’t a Commonwealth Act that sets out your rights in a simple and accessible way. Different rights are covered by different laws. And in most cases – but not always – the states or territories, rather than the Commonwealth, have responsibility for making sure that your rights are protected.

How rights can support future planning

‘Rights-based thinking’ simply means thinking about your needs from a human rights perspective and recognising that they are needs, not just things you’d like. When you are planning for your future, rights-based thinking can free you to think about what you need and want, not what others may think you need and want.

When planning for your future, consider more than the day-to-day details of life, like who does your banking or gets your medication. The bigger picture of how you want life to be as you age is connected to having your rights respected, and understanding this may help to make sure that your wellbeing and security are protected in your later years.

Senior man using a tablet

If you recognise what you need as things you have a right to, you may be able to make really clear instructions for your attorney. This may equip the attorney to make the best decisions for you – ones that are more likely to match your wishes and preferences.

There are some great resources around that help you think about what you want, and how to take a rights-based approach to future planning.

The difference knowing your rights can make

An awareness of their rights may help people feel less hesitant to ask for assistance as they age.

Sometimes, older people may think of other people helping them just ‘to do them a favour’ rather than meeting their genuine need. They may avoid asking for help because they ‘don’t want to bother people’ and believe others will feel annoyed or resentful.

This is called ‘defensive thinking’, and it guards against negative things like other people’s resentment or annoyance. In terms of a person’s basic needs – the rights that the United Nations recognises – defensive thinking can prevent those needs being met. And that doesn’t contribute to anyone’s wellbeing and security.

If you are able to think about the things you need as things you have a right to have, you may feel more confident to ask for them.

It may also make it easier for others to find different ways to meet your needs. For example, as well as asking one family member every time, you could:

  • arrange paid services, such as a gardener or cleaner

  • ask neighbours

  • make a roster for a number of helpers to do different tasks

Rights-based thinking: an example

Alberto lives alone, and his only daughter lives nearby. He needs more groceries, but he doesn’t manage shopping well on his own. He finds the supermarket overwhelming and struggles to understand how to choose and pay for what he needs.

Alberto would usually think like this:

I need to buy food, but it’s too hard on my own. My daughter might be able to help me, but I don’t want to bother her as she’s so busy with the children and work. I feel like I ask her all the time.’ (defensive thinking)

But he has learned about human rights and understands how they apply to him. Now he thinks like this:

I need help from my daughter to be able to get food. I know she’s busy, but I have a right to access healthy, nutritious food, so I will ask her about helping me get the shopping.’ (rights-based thinking)

Senior man talking to daughter

Although Alberto’s daughter is busy, she may be able to help by thinking of ways to help her father get what he needs. Perhaps she could take on the role of decision-maker through an enduring power of attorney but share the tasks that meet her father’s everyday needs with other people.

Unless Alberto asks for help, his daughter may not realise it’s needed. She also won’t have the chance to work out how to help him.

Your rights and your attorney

Talking to your attorney about how to protect your rights in your day-to-day life may give both of you a shared understanding of your needs, wishes and priorities. They may feel better able to do the role as a result, while you may find a greater feeling of being in charge of your future decision-making.

An attorney should consider whether the decisions they are making for the person respect their rights. For example, a creative person might find purpose and meaning in attending art classes. Their attorney should see these classes as important because they meet the person’s right to self-fulfilment and think about how to make sure the person can continue attending, such as arranging taxi vouchers to get there and volunteer companions or paid carers to accompany them.

It’s important to remember that your attorney is a ‘decision-maker’ and that they may not always be the person who provides the care or help that you need. There may be several people and services involved in enacting the decisions and enabling the lifestyle that you prefer. That’s fine! It’s your life, and you have every right to live according to your preferences.

Getting help if your rights aren’t respected

Experiencing feelings of ‘it’s not fair’ may be a sign that your rights aren’t being respected. If you have these feelings, it’s important not to ignore them.

Talk to the people involved. It may be helpful to get advice and information to help you understand your rights in the situation.

Every Australian state and territory has a human rights, equal opportunity or anti-discrimination agency that may be able to help:

Senior couple drinking tea

Developments in older people’s rights protection

The global pandemic has focused more attention around the world onto the urgent need for greater inclusion and protection of older people. There is a lot of discussion and activity happening in government and policy centres.

If you’re interested in keeping up with developments in this area, there are several places to find out more:


Appendix

UNITED NATIONS PRINCIPLES FOR OLDER PERSONS

To add life to the years that have been added to life, the United Nations General assembly adopted the following Principles for Older Persons on 16th December 1991 (Resolution No.46/91).

I) INDEPENDENCE:

1. Older persons should have access to adequate food, water, shelter, clothing and health care through the provision of income, family & community support and self-help.

2. Older persons should have the opportunity to work or to have access to other income-generating opportunities.

3. Older persons should be able to participate in determining when and at what pace withdrawal from the labour force takes place.

4. Older persons should have access to appropriate educational and training programs.

5. Older persons should be able to live in environments that are safe and adaptable to personal preferences and changing capacities.

6. Older persons should be able to reside at home for as long as possible.

II) PARTICIPATION:

7. Older persons should remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their well-being and share their knowledge and skills with younger generations.

8. Older persons should be able to speak and develop opportunities for service to the community and serve as volunteers in positions appropriate to their interests and capabilities.

9. Older persons should be able to form movements or associations of older persons.

10. Older persons should benefit from family and community care and protection in accordance with each society's systems or cultural values.

III) CARE:

11. Older persons should have access to health care to help them to maintain or regain the optimum level of physical, mental and emotional well-being and to prevent or delay the onset of illness.

12. Older persons should have access to social and legal services to enhance their autonomy, protection and care.

13. Older persons should be able to utilise appropriate levels of institutional care providing protection, rehabilitation and social and mental stimulation in a human and secure environment.

14. Older persons should be able to enjoy human rights and fundamental freedoms when residing in shelter, care or treatment facility, including full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their care and the quality of their lives.

IV) SELF-FULFILMENT:

15. Older persons should be able to pursue opportunities for the full development of their potential.

16. Older persons should have access to the educational, cultural, spiritual and recreational resources of society.

17. Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.

18. Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status, and valued independently of their economic contribution.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.

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