AGED CARE

The aged care program includes the provision of high level (formerly nursing home) and low level (formerly hostel) residential care; community care; and flexible care, including EACH packages. The aged care program is administered through the Commonwealth Department of Health and Ageing (the Department). In addition, an independent body, the Aged Care Standards and Accreditation Agency, is responsible for accrediting those facilities that meet the prescribed standards of care and accommodation.

The Australian Government provides financial assistance for residents who cannot fully meet their accommodation costs. This assistance is provided to supported residents through the payment of an accommodation supplement to the service in which they live.

A person is a "supported resident" if they enter a residential care service as a permanent resident for the first time on or after 20 March 2008 and their assets at the time of entry are valued at or below a certain threshold ($93,410.40 as at 1 July 2010) (s.44-5B AC Act).

Fully supported resident: A resident whose assets are less than an indexed amount namely $37,500 as at 1 July 2010. A fully supported resident cannot be asked to pay an accommodation payment.

Partially supported resident: A resident who has assets above $37,500 but below the threshold for being a supported resident namely $93,410. A partially supported resident may be asked to pay a small accommodation payment.

Non-supported resident: A resident who has assets above the threshold for being a supported resident namely $93,410. A non-supported resident may be asked to pay an accommodation payment.

Arrangements for residents who first entered permanent care on or before 19 March 2008 remain in place. Such a person may be a "concessional resident" or an "assisted resident" depending primarily on the value of their assets when they entered care. A concessional resident cannot be asked to pay an accommodation payment and an assisted resident may be asked to pay a small accommodation payment.

In advocating for people receiving aged care services, it is important to understand the ageing process.

A high proportion of care recipients suffer from a form of dementia, such as Alzheimer's disease. Many will not be competent to give instructions or execute legal documents. If there is no enduring power of attorney or enduring power of guardianship, and decisions cannot be made informally, an application for guardianship and/or administration may need to be made to the Guardianship List at the Victorian Civil and Administrative Tribunal.

Other care recipients may be physically frail but able to make competent decisions, although their frailty may cause them to tire quickly or limit their ability to express themselves.

Care recipients are in need of services on a continuing basis and there is a dependency on the service provider that makes complaining about deficiencies in the services or breaches of rights very difficult. Care recipients may have few choices for alternative care. In addition, a fear of retribution (whether real or perceived) for complaining can often prevent a care recipient from taking action to remedy a problem.

Care recipients need information, advice, support and the time to decide about whether to proceed with any action against a service provider. Although the aged care legislation expressly states that each resident of a residential care service has the right "to be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce his or her rights" (Charter of Residents' Rights and Responsibilities, Schedule 1, User Rights Principles 1997 (Cth)), the difficulty lies in the enforcement of that right.

Litigation is not the preferred means of resolution for many of the legal problems arising in aged care. The issues of cost, time, and continuing relationships make alternative forms of dispute resolution (e.g. advocacy, or the Department's Complaints Investigation Scheme) more appropriate.

Complaints Investigation Scheme

Department of Health and Ageing

GPO Box 9848

Melbourne Vic 3001

Tel: 9665 8888; 1800 550 552 (toll free)

Web: www.health.gov.au

An online complaints form can also be completed.See the Department’s website at www.health.gov.au.

Aged Care Advocacy services are funded in each state and territory to educate care recipients, their representatives, providers and the general community about the rights of care recipients and potential recipients of Commonwealth funded aged care services.

For more information on this subject refer to The Law Handbook chapter 19.2 Aged Care