Elderly Law
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
Word length – 600 words
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Aged Care Act 1997
The Aged Care Act provides the conditions that the provider should meet before he/she is
allowed to provide the services to the public. Some of the objectives of the Health Care Act 1997
are to promote a high quality of care and accommodation for the recipients of aged care services
that meets the needs of individuals; to protect the health and well-being of the recipients of aged
care services; to ensure that aged care services are targeted towards the people with the greatest
needs for those services; to facilitate access to aged care services by those who need them,
regardless of race, culture, language, gender, economic circumstance or geographic location; to
provide respite for families and others, who care for older people; to encourage diverse, flexible
and responsive aged care services that. These objectives can be achieved effectively if the
service provider is ready and has complied with the provisions of the act.
Chapter 4, division 56-1 highlights the Responsibilities of approved providers in the
residential care. One of these responsibilities is not to act in a way which is inconsistent with any
rights and responsibilities of care recipients that are specified in the User Rights Principles. By
asking the client to take the mother to a different facility, the service provider has violated the
User Rights Principles. One of these principles is the principle of total care which entails that the
service provider should provide total care to the persons that he/she has undertaken to take care
of. In this case total care means the provision of the basic wants such as food not forgetting
health. The user has given the subsidy plus the commonwealth subsidy which is to take care of
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her when in the care residency. The provider has a responsibility to take care of the health of the
user. By calling my client to take her mother to hospital, the service provider has violated the
health care principles and can be summoned in a court of law.
The facility provider communicated earlier to the client that they should take their mother
to a different facility this sounds very okay. The big question is whether the service provider met
the requirements as outlined in the requirements specification. One of the requirements as
outlined in chapter 4 of the act division 57 states the rules relating to charging ban
accommodation bond for the entry of a person to a residential care service. One of these rules
states that “the service, or the distinct part of the service through which the care recipient is to
receive care has extra service status.”
In this case health care service provision is one of the extra services that this division
talks about. The diagnosis is part of taking steps in ensuring that the health status of the aged
users is safe, however diagnosis is not complete without the correct remedy. It does not make
any sense at all that the work of the facility is just to diagnose only.
The management of the facility must have been given a certificate of compliance to the
secretary. One of the basic compliance is to ensure that the staff available is able to meet the
needs of the users. It is not the failure of my client that the facility does not have enough staff to
take care of her mother but rather the failure of the facility provider.
Under the security of tenure, the aged facility user has a right to remain in the facility
centre unless evicted by a court order. In this case, the service provider has not obtained any
court order and therefore my client’s mother has all rights to remain in the facility centre unless
asked to move out by a court order. The facility user has made all the payments as specified by
the Aged Care Act and therefore has a legal right to continue staying at the facility center.
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Retirement Villages Act 1986
In acquiring a retirement village, the client should understand the retirement village Act
which provides guidance on the acquiring and use of the retirement village. This law applies for
those who paid for complete ownership and for those who have rented a retirement village.
Verification of registration of the retirement village- PART 6C
The client must confirm that the retirement village is legally registered under the
Retirement Villages Act 1986 which provides guidelines for registration. Part 6 c of the
Retirement Villages Act 1986 provides that the Director must keep and maintain a register
in accordance with this Part for the purpose of enabling members of the public to have
access to information about the application of this Act to particular retirement villages.
The Director must record in the register the following information in respect of each
retirement village of which the Director has received notice under section 38L—(a) the
name of the retirement village; and (b) the physical address of the retirement village;
and (c) the postal address of the retirement village; and (d) if an order for an exemption
has been made in relation to the retirement village under section 6, particulars of that
order that are sufficient to enable that order to be identified.
Charges charged by the retirement village PART 6A
The client should get to know exactly the charges that are made and are for what
purpose. In this case the charges include the price for purchase of the unit. It is very
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important to understand what this charges entails. Do the charges entail extra services
that shall be offered to the client for the entire lifetime that they are going to stay at the
place of unit purchase? Such purchases usually include house maintenance services
and ground maintenance services. Also the client has to understand how often these
services are going to be provided. For example are the services to be provided after
one year or after every two years. The charges to be charged how are they to be paid.
Should the client pay in installments or should they pay the entire required amount at
once. In this case the client should understand Division 1 of the Act in regard to
Maintenance and other charges in section (3) A manager is not liable in any civil action
for breach of contract in respect of the manager’s failure to provide goods and services;
(a) to cover the cost of the provision of the goods and services it would be necessary to
levy a maintenance charge greater than the adjusted maintenance charge; and (b) in all
the circumstances the manager acted reasonably; and (c) the residents have not
approved the payment of a maintenance charge greater than the adjusted maintenance
charge.
Condition of the unit to be bought
The client should physically observe the unit that they want to purchase and verify
whether the unit meets their needs. The unit should be in a good condition before the client can
make any payment or any indication of making payment. Such an inspection is very important so
that the client can ask the manger to put the house in the most presentable order before they can
purchase it.
In assessing both the Retirement Village Act 1986 and the Aged Care Act 1997 they both
aim at making the life of the citizen very comfortable whenever they retire and when they
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become old. The duty of the government is to protect its citizens both at their youthful levels and
at their old age. This is achieved by both of these acts which ensure that every old and retired
citizen lives a comfortable life after serving the nation.
References
Aged Care Act 1997. Includes amendments up to: Act No. 99, 2013.No. 112, 1997 as amended.
Compilation start date: 1 August 2013 ComLaw Authoritative. Retrieved from
www.comlaw.gov.au.
Contract traps- choice reports on Retirement Villages, (2011). Have you considered all
your options?
