Aged care

 

When a loved one becomes frail and is unable to live independently, what options do they or their family have? This difficult and emotional decision is often compounded with the legal issues associated with the options available for aged care.

 

It is often the case where the elder person is insistent on staying independent and being able to care for oneself. This can cause issues particularly where family members and/or friends are concerned over the elder’s welfare and safety.

 

The transition into an Aged Care Facility or into the care of a relative/friend can become disconcerting particularly if there are any concerns over the legal issues in entering into these arrangements.

 

 

Aged Care Facilities are administered under the Aged Care Act 1997 (ACA). The ACA generally governs the rights and obligations of residents and care providers (whether or not the care providers are transitional care providers), contractual commitments and formation, quality of care, security of tenure and processes in entering into facilities.

 

Associated with the ACA are sets of principles that are referenced below, namely Approval of Care Recipients Principles and User Rights Principles.

 

 

(A)       Assessment

 

In order to be eligible for aged care, an applicant must be assessed by an Aged Care Assessment Team (‘ACAT’). ACAT can be reached through the Department of Health and are attached to most hospitals throughout Australia. It is a recommendation to ensure a current ACAT assessment has been sought prior to entering into any Residential Care Facility agreement.

 

The criteria for eligibility into residential care is set out in Section 5.5 of the Approval of Care Recipients Principles (see below):

 

            (1)        A person is eligible to receive residential care only if:

(a)        the person is assessed as:

(i)         having a condition of frailty or disability requiring at least low level continuing personal care; and

(ii)        being incapable of living in the community without support; and

(iii)       meeting any other eligibility criteria for the level of care assessed for the person that are set out in the classification level applicable under the Classification Principles 1997; and

(b)        for a person who is not an aged person — there are no other care facilities or care services more appropriate to meet the person’s needs.

(2)        In deciding if the criteria mentioned in subsection (1) are met, the Secretary must consider the person’s medical, physical, psychological and social circumstances, including (if relevant):

(a)        evidence of medical condition, as decided by suitably qualified medical personnel;

(b)        evidence of absence or loss of physical functions, as established by assessment of capacity to perform daily living tasks;

(c)        evidence of absence or loss of cognitive functioning, as established by:

(i)         a medical diagnosis of dementia or other condition; or

(ii)        assessment of capacity to perform daily living tasks; or

(iii)       evidence of behavioural dysfunction;

(d)        evidence of absence or loss of social functioning, as established by:

(i)         using information provided by the person, a carer, family, friends and others; or

(ii)        assessment of capacity to perform daily living tasks;

(e)        evidence that the person’s life or health would be at significant risk if the person did not receive residential care. “

 

In order for a resident to be classified for funding purposes, the Department of Health and Ageing requires a facility provider to:

 

(a)        prepare an assessment setting out the resident’s abilities and care needs;

(b)        strategically devise a care plan to show how the resident’s care needs and abilities are to be met;

(c)        prepare a submission for funding based on the assessment and care planning strategy to the State or Regional manager of the Department of Health and Ageing.

 

 

 

Division 59-1 of the ACA regulates what must be included in a residential care agreement. Generally it includes:

 

(a)        a description of the facility including its name, address and other identifying features;

(b)        the level of care and services which the facility provider is able to provide;

(c)        the fees applicable to residential care and the policies and practices of the facility provider;

(d)        whether there are any respite care arrangements available (if applicable);

(e)        termination rights of the agreement and assistance which will be provided in the event of termination;

(f)         complaint resolution arrangements;

(g)        responsibilities of residents; and

(h)        compliance with other matters set out in the User Rights Principles (see below).

 

 

Section 23.85 of the User Rights Principles sets out prescribed matters for the process of entering into a residential care agreement:

 

A resident agreement must comply with the following requirements:

(a)        the agreement must be signed by the approved provider and by the care recipient or care recipient’s representative;

(b)        the agreement must provide that if, within 14 days after signing, the care recipient or his or her representative tells the provider, in writing, that the care recipient wishes to withdraw from the agreement:

(i)         the agreement becomes void; and

(ii)        the care recipient is liable for the fees and charges payable for any period when the care recipient was in the residential care service under the agreement; and

(iii)       the provider is liable to refund any other amount paid by the care recipient under the agreement;

(c)        the agreement must provide:

(i)         that the agreement may be varied:

(A)       by the approved provider, if the variation is necessary to implement the A New Tax System (Goods and Services Tax) Act 1999; or

(B)       in any other case, by mutual consent, following adequate consultation, of the care recipient and approved provider; and

(ii)        that the agreement must not be varied under sub subparagraph (i) (A) unless the approved provider has given reasonable notice in writing about the variation to the care recipient; and

(iii)       that the agreement must not be varied in a way that is inconsistent with the A New Tax System (Goods and Services Tax) Act 1999, the Aged Care Act 1997 or the Extra Service Principles 1997;

(d)        the agreement must provide for its termination on 7 days’ written notice given by the care recipient to the provider;

(e)        the care recipient or his or her representative must be told of, and helped to understand, the terms of the agreement, including the care recipient’s rights and obligations, the services to be provided, and the fees and other charges;

(f)         the agreement must treat the care recipient and provider as equals and clearly set out the rights and obligations of each party;

(g)        the agreement must provide for the care recipient’s right to occupy a place at the residential care service, beginning on the day of the agreement or a stated later day, for the period stated in the agreement or for the remainder of the care recipient’s lifetime;

(h)        the agreement must include any other matters negotiated between the approved provider and the care recipient (including, if applicable, costs);

(i)         the agreement must be expressed in plain language and be readily understandable.”

 

 

 

The rights and responsibilities of a resident are formulated within the contract/agreement, ACA and User Rights Principles.

 

Under Schedule 1 of the User Rights Principles, it is important to note the charter of residents’ rights and responsibilities (see below).

 

 

·        to full and effective use of his or her personal, civil, legal and consumer rights

·        to quality care appropriate to his or her needs

·        to full information about his or her own state of health and about available treatments

·        to be treated with dignity and respect, and to live without exploitation, abuse or neglect

·        to live without discrimination or victimisation, and without being obliged to feel grateful to those providing his or her care and accommodation

·        to personal privacy

·        to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction

·        to be treated and accepted as an individual, and to have his or her individual preferences taken into account and treated with respect

·        to continue his or her cultural and religious practices, and to keep the language of his or her choice, without discrimination

·        to select and maintain social and personal relationships with anyone else without fear, criticism or restriction

·        to freedom of speech

·        to maintain his or her personal independence

·        to accept personal responsibility for his or her own actions and choices, even though these may involve an element of risk, because the resident has the right to accept the risk and not to have the risk used as a ground for preventing or restricting his or her actions and choices

·        to maintain control over, and to continue making decisions about, the personal aspects or his or her daily life, financial affairs and possessions

·        to be involved in the activities, associations and friendships of his or her choice, both within and outside the residential care service

·        to have access to services and activities available generally in the community

·        to be consulted on, and to choose to have input into, decisions about the living arrangements of the residential care service

·        to have access to information about his or her rights, care, accommodation and any other information that relates to the resident personally

·        to complain and to take action to resolve disputes

·        to have access to advocates and other avenues of redress

·        to be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce his or her rights.

 

·        to respect the rights and needs of other people within the residential care service, and to respect the needs of the residential care service community as a whole

·        to respect the rights of staff and the proprietor to work in an environment free from harassment

·        to care for his or her own health and well-being, as far as he or she is capable

·        to inform his or her medical practitioner, as far as he or she is able, about his or her relevant medical history and current state of health.”

 

 

 

From a resident’s point of view, it is paramount for the residents health and well-being, state of mind to know that once in a care facility they have security of tenure.

 

Thus, one of the most important responsibilities of providers is to provide security of tenure as specified in the User Rights Principles and Section 56-1(C) of the ACA. The security of tenure maintains a resident’s right to remain in the facility unless certain circumstances arise as set out in section 23.5 of the User Rights Principles. Further, section 23.6 sets out the procedure for asking a resident to leave. (see below).

 

(1)        The approved provider may ask the care recipient to leave the residential care service only if subsection (2), (3) or (4) applies.

(2)        The approved provider may ask the care recipient to leave if the residential care service:

(a)        is closing; or

(b)        no longer provides accommodation and care suitable for the care recipient, having regard to the care recipient’s long-term assessed needs (see subsection (4)), and the approved provider has not agreed to provide care of the kind that the care recipient presently needs.

(3)        The approved provider may ask the care recipient to leave if the care recipient:

(a)        no longer needs the care provided through the residential care service (see subsection (5)); or

(b)        has not paid any agreed fee to the approved provider within 42 days after the day when it is payable, for a reason within the care recipient’s control; or

(c)        has intentionally caused:

(i)         serious damage to the residential care service; or

(ii)        serious injury to the approved provider (if the approved provider is an individual); or

(iii)       serious injury to an employee of the approved provider, or to another care recipient; or

(d)        is away from the residential care service for a continuous period of at least 7 days for a reason other than:

(i)         a reason permitted by the Act; or

(ii)        an emergency.

(4)        For paragraph (2) (b), the long-term needs of the care recipient must be assessed by:

(a)        an aged care assessment team; or

(b)        at least 2 medical or other health practitioners who meet the following criteria:

(i)         1 must be independent of the approved provider and the residential care service, and must be chosen by the care recipient or the care recipient’s appropriate representative;

(ii)        both must be competent to assess the aged care needs of the care recipient.

(5)        For paragraph (3) (a), the needs of the care recipient must be assessed by an aged care assessment team.

 

(1)        If the approved provider decides to require the care recipient to leave the residential care service, the approved provider must give the care recipient a written notice that includes the following information:

(a)        the decision;

(b)        the reasons for the decision;

(c)        when the care recipient is to leave;

(d)        the care recipient’s rights about leaving, including the right of access to:

(i)         the complaints resolution mechanisms; and

(ii)        independent complaints processes; and

(iii)               1 or more representatives of an advocacy service.

 

 

(2)        The approved provider must give the notice to the care recipient at least 14 days before the care recipient is to leave.

(3)        The approved provider must not take action to make the care recipient leave, or imply that the care recipient must leave, before suitable alternative accommodation is available that meets the care recipient’s assessed long-term needs and is affordable by the care recipient.

(4)        For subsection (3), the long-term needs of the care recipient must be assessed by:

(a)        an aged care assessment team; or

(b)        at least 2 medical or other health practitioners who meet the following criteria:

(i)         1 must be independent of the approved provider and the residential care service, and must be chosen by the care recipient or the care recipient’s representative;

(ii)        both must be competent to assess the aged care needs of the care recipient.

(5)        The approved provider must give the care recipient a notice stating that the care recipient is no longer required to leave if:

(a)        the decision to require the care recipient to leave was based on the care recipient’s behaviour; and

(b)        the approved provider has, since giving the original notice, agreed with the care recipient that, because of a change in the behaviour, the care recipient should stay.”

 

however, there are no priority rights over any particular location.

 

 

As an alternative to residing in an Aged Care Facility and depending on the elder person’s ability to live independently, they may elect to reside in their existing residence with the assistance of nurses, therapists, food preparation services, etc.

 

A word of caution: It is important to ensure thorough background checks are conducted and accreditation supported (where possible) when contracting in house service providers particularly to ensure the elder person’s welfare and assets are secure.

 

 

There are many various reasons why an elder person may reside with family and/or friends as opposed to living in an Aged Care Facility. Often it is as a consequence of culture, family pressure, compassion, and willingness. Whatever the reasoning, it is important to consider what level of care can be provided and what care may be required in the future.

 

There have been many cases where an elder person has resided with families/friends and relationships are strained, financial security for the elder person has diminished and/or underlying illegitimate intentions have been overshadowed by a need for care.

 

To illustrate, reference is made to the case of Morris v Morris NSW SC MacLelland J in Eq., (1982) NSWLR 61. In this case the elder person sold his unit to live with his only son who was married with two children. It was suggested that the proceeds of the elder person’s unit would go towards the construction of a second storey extension to the son’s house which would be occupied by the father. There was no discussion of the living arrangements or what would happen if the relationship of the son and daughter-in-law broke down or they simply just wanted to sell the house. As the son’s relationship with the daughter-in-law did break down, the house was sold. The elder person was left with a legal battle to recover the capital he paid towards the son’s house for the extension.

 

This case has been applied, considered and cited on many occasions the latest being Doris Irene Taylor v Marian Streicher and Anor [2007] NSWSC 1006.

 

Despite whether or not the parties agreement to reside are on amicable terms and it is considered that the family relationship will prevail over any other circumstance, where an elder person intends to live with family or friends, it is important to consider entering into a contractual arrangement to establish each parties needs, rights, obligations, living arrangements, consequences of relationship break down or sale of dwelling, etc.

 

In conclusion, careful consideration should be had and communication lines open when deciding the level of care and needs of an elder person. The options available to the elder person are generally dependent upon (and may be, in circumstances, somewhat restricted by) the individual needs of that person.

 

 

LEONIE BLAZEY