+1 862 207 3288 Elder Law Aged Care Act.
Elder Law, Aged Care Act 1997 (Cth)
PART A
Elder Law Aged Care Act. You are employed in a legal firm specializing in Elder Law. Your client has a mother who has recently been diagnosed with dementia and is a resident in a residential aged care facility. Your client tells you that the manager of the facility has rung her and told her that she will now have to take her mother to another facility within the next week as they haven’t the staff to look after her. Your client is obviously very distressed at this and asks you if the approved provider can actually do this.
With reference to the Aged Care Act 1997 (Cth), (and relevant Principles), outline your client’s legal position in the area known as Security of Tenure
Part B
You are still employed as a junior solicitor is the same small suburban law firm. The partner is quite impressed with your work in the area of Elder Law and tells you that she has a new client coming in later that day. The client wants to move into a Retirement Village and wants advice about what kind of things they should be aware of before entering into any contract with the Operator of the Village. As the partner knows nothing about Retirement Villages she asks you to provide her with an overview of the key issues she will need to discuss with the client. The partner tells you she wants it set out, with headings and the relevant legislation in respect of purchasing a unit in a retirement village in the jurisdiction of New South Wales.
Please prepare the overview for the partner.
Answer: Elder Law
In the annual year 2014-2015, the government spent approximately 15.8 billion Australian dollars on aged care[1]. It is inclusive of funding home-based care, residential care, and flexible care. Regardless, the elderly have continued to be subjected to bad experiences as they try to get care from different facilities in the country. In this light, the Aged Care Act of 1997 should be enacted. It will enhance the quality of life for the elderly.
Part A, Elder Law Aged Care Act
The Aged Care Act of 1997 provides that the government should offer financial support to the elderly[2]. This is done through the payment of subsidies and grants. It is done in consideration to the approvals by the care providers and recipients. The elderly may be required to pay for some services. The providers should offer the quality of care and not charge more than what is provided in the act. They must be accountable and respect the rights of the elderly. In the case study, the client’s mother is being mistreated by the residential aged care facility. It has been suggested that the client should be taken to another facility because there is no staff to look after them. It distresses the elderly. The law must protect the client by evaluating the sections in the aged care act of 1997 that apply to the case.
With consideration to the security of tenure provisions, the Aged care service providers are required to offer older adults with high levels of certainty[3]. They must act reasonably so that the environment in the residents is safe and secure. The resident can only leave based on some circumstances. The first one is that the facility must be closing. Second, they can leave if the facility has not agreed to provide a specific type of care. Third, they can leave where the elderly do not need the care offered in the facility. Fourth, it can take place when the resident fails to pay the fee within 42 days after when it was due. Fifth, the resident will be asked to leave when they intentionally cause a substantial amount of damage to the facility. It may also be that they have caused injury to the employees or other residents. Sixth, they will be asked to leave if they are away on leave for more than a week for reasons not permitted by the act.
The provisions make it daunting for the service provider to ask residents to leave their facilities. Even when they are justified to ask the resident to leave, the law requires them to ensure that suitable accommodation is availed[4]. A family member who feels that the elderly are mistreated has the right to complain. In the case study, the residential aged care facility does not have grounds to ask the elderly to leave. It has not been fully confirmed that the facility cannot provide care to dementia patients. Having been approved to provide care to the aged, the management is obligated to find the right workers to help in such cases. Further, the client has paid the fees required to get the necessary care. They have not caused damage or injuries to the worker despite their health condition.
More so, the facility has not made arrangements for another alternative accommodation facility. Instead, they require the client’s mother to leave within a week. The facility is liable for causing distress to the patient. It must not only pay for such damages, but the courts must also determine whether it should remain in operation given that the right environment necessary for the elderly is not provided. On its part, the facility can argue that it does not have the funds to employ specialists to deal with dementia. It is hence the importance to prove without a reasonable doubt that the facility has violated the client’s rights.
Part B, Elder Law Aged Care Act
Retirement villages offer the elderly with greater freedom as opposed to other facilities in the country. In the case study, both the service providers and the residents must be aware of the relevant legislation. It will allow them to make the necessary preparations and hence avoid legal disputes. The facilities are subject to the Retirement Villages Act of 1986. It was amended in 2006 and 2013[5]. The village owner is expected to offer a fact sheet to the clients within seven days after the initial contacts with the potential resident. It addresses 39 issues on how they will provide care in the facility. Penalties are charged to the owner if this is not achieved. Henceforth, the client will be required to sign the document if they agree with the terms and conditions. The owner must register the facility before offering the services. The authorities have the right to close facilities that are operating without a license.
Offering Leases, Elder Law Aged Care Act
The retirement village owner is legally entitled to retain the ownership of the land. They can offer a lease of a unit to the client in return for an agreed upon sum of money[6]. It is known as a loan. The loans are repayable after the death of the resident. The repayment can be delayed to give a chance for a reselling of the unit. In case of agreements with non-owner residents, the owner should repay the amount within six months. The potential resident should be given the documents 21 days before signing and three cooling-off days after signing. This ensures that a person who is being misled into signing a contract has a chance to consult and changing their mind in time. Older adults are likely to make wrong decisions under duress. It is particularly true if they do not have legal representation during the period of signing contracts. Giving them time is therefore essential.
Charges, Meetings, and Reports, Elder Law Aged Care Act
The village manager does not have the right to increase the fee above the consumer price index. It protects the residents from the exploitation by the village owners. However, they can increase the price when the residents approve it[7]. The deferred management fee can be paid upon leaving the facility. It is counted as the percentage of resale. The calculations can rise after five or ten years. The resident leaving the facility should pay for the repairs.
The village owner must have an annual meeting with the residents. It should be audited unless the residents decide otherwise. It helps address some of the issues that the residents may have. Further, the owner has a chance to explain how they plan on providing quality care. A sense of transparency and accountability is achieved in this case.
Disputes, Proxies, Power Of Attorney, Elder Law Aged Care Act
The disputes arising in the villages are handled through mediation. The village manager or owner should arrange the dispute resolution process. Mediation is an ideal way of resolving disputes for the elderly since they are not subjected to the lengthy processes in the courts[8]. Proxies are not allowed by the village operators from the residents. The relatives may, however, play the role. It is in line with the Australian consumer law and the fair trading act of 2012. It protects the elderly from the deceptive and misleading practices in the consumer market. The operator cannot also ask the resident to give a power of attorney.
All in all, understanding the laws that protect the elderly in Australia is important because it leads to the quality of life for the group. The Aged Care Act of 1997 protects the elderly from being exploited while in the residential aged care facilities. They must not be required to leave without being provided with alternative residents. The law also protects them in the village retirement facilities. They must be aware of the terms and conditions before signing the contracts with the village owners. Can we write a similar paper for you?
Elder Law Aged Care Act, References
Baldwin, Richard, Lynn Chenoweth, and Marie Dela Rama, ‘Residential Aged Care Policy In Australia-Are We Learning From Evidence” (2015) 74(2). Australian Journal of Public Administration, 128-141.
Federal Register of Legislation, Aged Care Act 1997 (2018) < https://www.legislation.gov.au/Details/C2017C00241>
Healy, Bill and Noel, Renouf, Contextualized social policy: an Australian perceptive. In Mental Health at the Crossroads, 55-66. (Routledge, 2017).
McCullagh, Richard, ‘Property and elder law: Retirement villages- a reality check’ (2018)41. Law Society of NSW, 88
Benczes, Reka and Kate Burridge, ‘Current attitudes to ageing as reflected in the names of Australian aged care facilities’ (2015) 63(3). Names, 127-145
Grove, Alex, Aged care: A quick guide (24th October 2016) https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/Aged_Care_a_quick_guide
[1] Grove, Alex, Aged care: A quick guide (24th October 2016) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/Aged_Care_a_quick_guide>
[2] Richard, Baldwin, Lynn Chenoweth, and Marie, Dela Rama, 2015, ‘Residential Aged Care Policy In Australia-Are We Learning From Evidence” (2015) 74(2). Australian Journal of Public Administration, 128-141.
[3] Federal Register of Legislation, Aged Care Act 1997 (2018) < https://www.legislation.gov.au/Details/C2017C00241>
[4] Healy, Bill, and Noel, Renouf, Contextualized social policy: an Australian perceptive. In Mental Health at the Crossroads, 55-66. (Routledge, 2017).
[5] Richard, McCullagh, ‘Property and elder law: Retirement villages- a reality check’ (2018)41. Law Society of NSW, 88
[6] Benczes, Reka and Kate Burridge, ‘Current attitudes to aging as reflected in the names of Australian aged care facilities’ (2015) 63(3). Names, 127-145
[7], Richard, McCullagh, ‘Property and elder law: Retirement villages- a reality check’ (2018)41. Law Society of NSW, 88
[8] Richard, McCullagh, ‘Property and elder law: Retirement villages- a reality check’ (2018)41. Law Society of NSW, 88
