At one of our recent, free, Growing Older community forums we had a number of experts share the key things people need to know about various accommodation options available to people when growing older.
- Barrister, Kim Boettcher, spoke about retirement village contracts.
- Financial planner, Chelsea Robinson, from JSA Group, spoke about moving into residential aged care.
- John MacKenzie from Hunter Tenants’ Advice and Advocacy Service spoke about a unique form of housing, residential communities.
- Elder law expert, Lucy Wilk, from Catherine Henry Lawyers, spoke about making complaints or taking legal action in relation to poor aged care.
Below is a summary of the key points each speaker made.
Watch a short summary video here.
A profile of older Australians
According to the Australian Institute of Health and Welfare (2017)
- the number of people aged 65 and over in Australia is projected to more than double, to 8.8 million over the next 40 years.
- 8% of them lived in households – 5.2% lived in residential care
- 85% are retired
- almost 40% need assistance with at least one daily activities
Retirement Villages – Kim Boettcher
A retirement village is different to a nursing home, hostel or caravan park. It is a complex containing residential premises predominately or exclusively occupied by retired people who have entered into village contracts. Legally, in NSW, they are governed by the NSW Retirement Villages Act. Other states have their own legislation.
Before you sign a contract, you must be given a Disclosure Statement, free of charge. This statement must show things such as:
- the size, location and services available in the village
- the proximity to key services such as hospitals, shops and public transport
- details about the ownership and management of the village including contact details for the operator and residents’ committee
- the village’s compliance with legislation and safety procedures.
Villages are also required to have a proposed annual budget.
You must be given at least 14 days after receiving a Disclosure Statement to read the contract. That contract must be in plain English and include a copy of the condition of the premises (not required if you own the unit) and a copy of the village’s rules. You can rescind the contract within 90 days but your settling in period is waived if you move in without signing a contract.
You can only be evicted following an order made by the NSW Civil and Administrative Tribunal (NCAT) for reasons such as:
- medical grounds;
- breaching the village rules;
- causing serious damage or injury; and
- a change of use or upgrade of the village.
Your rights and obligations when leaving a village (refund or sale) depend on the type of contract you have signed. That’s why it is so important to get independent legal advice. You should check if you have the right to set the sale price of the unit, appoint a real estate agent or sublet the unit. You will generally be liable to pay recurrent charges until 14 days after a new resident moves in, signs a contract or the operator buys the unit.
Moving into residential aged care – Chelsea Robinson
There are three main accommodation types for older people.
- Private homes
- Retirement villages or serviced units
- Residential aged care facilities (nursing home).
Before entering an aged care facility you need to arrange an assessment by the Aged Care Assessment Team (ACAT). If ACAT determine that you are eligible for a place in a residential aged care facility, and if the Australian Government has nominated the facility that you plan to move into as an approved provider, you may qualify for subsidised care.
When selecting a facility it is important to bear in mind the following:
- The location and amenities
- The accommodation payment
- Affordability and value for money
- The fees charged by the facility.
Residential aged care is expensive but the Government pays a large part of the cost if the residential facility is an approved provider.
You are responsible for paying:
- an accommodation payment – this is for room and facilities
- a basic daily care fee (which everyone pays) and a means tested fee which is a contribution to living expenses and the costs of care costs of other services that the facilities may provide – these are known as ‘luxuries’ and are not charged by all facilities.
You have the option of paying a lump sum, a daily fee or a combination of both. You have 28 days to decide how you would like to pay. If you are planning to pay a lump sum you have at least six months to rearrange your assets. Interest (calculated daily) is payable until the lump sum is paid (5.96%).
If you do not receive the Aged Pension you must also pay a refundable accommodation deposit (RAD). This buys the right to live at the facility.A common question is whether your house is taken into account as an asset when aged care fees are calculated or when eligibility for the Aged Pension is considered. In relation to the pension, your house is exempt if your spouse lives there or exempt for the first two years if no spouse lives there. Net rental income is taken into account. In relation to aged care fees, your house is exempt if your spouse or a protected person (dependent child, carer or close relative eligible for certain welfare support) is still living there. Otherwise the capped value is $165,271.20. Net rental income is taken into account.
If you receive Centrelink or Dept of Veterans Affairs payments you must notify Centrelink when you move into care. Estate planning and other advice is essential when you are moving into an aged care facility. It is likely that you will need expert assistance when considering which payment option is right for you and whether you should sell or keep your home. There are other strategies to consider such as gifting, reverse mortgages, annuities and funeral bonds.
Residential Communities (manufactured homes) – John Mackenzie
Residential communities include manufactured home estates, caravan parks, camping grounds and movable dwellings. Such accommodation can provide low maintenance living as well as access to community facilities and a support network. Legally, these communities are governed by the Residential (Land Lease) Communities Act 2013 and Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005. You may purchase a manufactured home from a current home owner, the park operator or direct from the manufacturer.
There is no standard form of contract for the sale of a manufactured home. You should make an agreement with the seller of the home that the purchase is subject to entering into a site agreement with the park operator. You can request a site agreement prior to the purchase of a home. This agreement specifies your rights and obligations. It is always good to get independent advice before signing the agreement. When considering a manufactured home, you need to be sure that it is a practical retirement strategy and not a poverty trap. Consider things such as the cost of the home, site fees and how often site fees are likely to increase.
Making a complaint or taking legal action in relation to poor aged care – Lucy Wilk
The Charter of Care CHECK says that all residents of aged care facilities are entitled to:
- quality care appropriate to the care recipient’s needs;
- respect and dignity ;
- a living environment without discrimination or victimisation;
- a safe, secure and homelike environment; and
- individualised treatment and acceptance.
Unfortunately, poor aged care is becoming increasingly common. A 2017 parliamentary inquiry heard that 93 NSW nursing homes failed to meet accreditation standards. During the last quarter of 2017, the Aged Care Complaints Commissioner received 1,284 complaints. Residents and their families can be reluctant to make complaints for fear of reprisal. The first step is to raise a complaint directly with the aged care residential facility but sadly, this is often ineffective. There are currently three regulatory bodies responsible for aged care. From January 2019, a single government body, the Aged Care Quality and Safety Commission will be responsible for approval, accreditation, assessment, monitoring, compliance and complaints management for all Australian Government subsidised aged care providers.
If you are unsatisfied with the outcome of a complaint made directly to an aged care facility, you may consider making a claim for compensation by alleging negligence. Such actions may not be commercially viable if damages do not exceed $100,000. Litigation hits the hip pocket of aged care providers and can be an effective tool in creating change so other people don’t experience poor care in the future.
In bringing a complaint or legal action against an aged care facility it is important to gather evidence of negligence such as:
- first-hand accounts by families;
- CCTV footage; and
- clinical records.
Lawyers can help residents or their families gain access to this information.
The team at Catherine Henry Lawyers thank those experts for sharing their insight. If you need more information about any of these matters do not hesitate to contact our caring, expert team.