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 (financial) or enduring power of guardianship, and decisions cannot be made informally, an application for administration and/or guardianship may need to be made to the Guardianship List at the Victorian Civil and Administrative Tribunal (VCAT). (See: Chapters 16*6 Guardianship and Administration, and 16*7 Powers of Attorney, for more information on these issues.)

Other care recipients may be physically frail but mentally competent to make 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 reslove 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 ("User Rights Principles")), 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, and/or the Department's Aged Care Complaints Scheme) more appropriate. (See: "Complaints and dispute resolution", below).

In April 2010, the Australian Government commissioned the Productivity Commission to undertake a broad-ranging inquiry into Australia's aged care system. The aim of the inquiry was to develop detailed options for redesigning the aged care system particularly in view of the increasing demand for aged care services.

In January 2011 the Commission released its draft report which recommended a major overhaul of Australia's aged care system to improve the wellbeing of older Australians and meet the challenges of an ageing population.

The Commission's final report was presented to the Government for its consideration in June 2011. At the time of writing, the final report had not been released. For further information see the Productivity Commission's website at www.pc.gov.au