Aged care planning may not necessarily trigger a thought to seek legal advice, but arrangements involving transitioning to care are contractual and are best dealt with by a lawyer who is experienced in this complex area of law, writes Attwood Marshall Lawyers’ Wills and Estates, Senior Associate and Accredited Aged Care Professional, Larisa Kapur. From understanding the hidden terms in an aged care contract, to the impact it has on your estate plan and Centrelink entitlements, there’s a lot to consider.
Transitioning to aged care is a significant life event that demands careful consideration. This transition involves personal preferences and financial and legal aspects that require scrutiny throughout the decision-making process.
Here, we answer some of the frequently asked questions individuals ask when planning to move into aged care.
1. Why do I need legal advice before moving into aged care?
While it is essential to find a place that feels right, personal preferences are important factors when choosing the suitable aged care facility for you. However, what often gets overlooked are the contractual and financial aspects involved.
Additionally, moving into aged care can significantly impact your estate planning.
When transitioning to aged care, there will often be discussions about the family home, your financial position, and the care you need now and in the future. There are also contractual obligations and agreements you will enter into with the facility of your choice which involve very important issues with financial consequences for you.
These are just some of the reasons why it is essential to get trusted advice so that you can make an informed decision about property, financial matters, care and health care choices, and entering a binding contract.
Read more: Transitioning to residential aged care? We answer the 6 most common questions asked by clients
2. How complicated is an aged care agreement?
While entering aged care may be different to buying a property, you are still entering into a legally binding contract and committing a considerable sum of money for your residence in the facility.
Before signing a contract, it is essential to understand the terms of the contract.
Some of the many conditions an aged care contract will set out are:
- The types of care and services the resident will receive
- Fees
- Policies around fee charges
- Rights and responsibilities as a resident and the responsibilities the aged care facility has to the resident
- Policies around visitors
- Details about respite care (if applicable)
- Details about exiting the facility and conditions under which a resident may be asked to leave – there may also be significant exit fees payable
- Alternative accommodation assistance if a resident must leave the facility
- A complaint resolution mechanism to address any complaints the resident may have.
Aged care agreements are legally binding contracts, so it is essential to get advice and ensure you have a complete understanding of what you are signing, including all the terms and conditions before you sign anything.
Read more: Senior lawyer calls for action on retirement village exit fees at QLD LNP Convention
3. Could there be hidden terms in a contract?
The most common oversights in these types of contracts usually revolve around fees. Many people assume that what is stated in the contract is the final amount; however, additional services usually come at an extra cost that can catch residents off guard.
People need to be mindful of accommodation fees, care fees, service fees, and any exclusions that must be factored in.
It is imperative to completely understand the process and steps required with moving out of an Aged Care facility if your circumstances change and you no longer want to live there.
Many facilities also require appointing a guarantor on your agreement before entering an aged care facility. While not required by law, some facilities mandate that all residents have a guarantor listed as part of their agreements. In the context of aged care in Australia, a guarantor often refers to a person who agrees to take financial responsibility for certain costs associated with the care of a resident. The role of a guarantor can vary depending on the specific arrangement or agreement with the aged care facility, but generally includes financial responsibility and guaranteeing of payments should the resident be unable to cover the fees associated with aged care.
If you appoint a guarantor when entering aged care, that individual should obtain independent legal advice to understand the financial responsibility they are taking on.
Read more: Understanding the responsibilities of being a guarantor in aged care
4. How does Centrelink fit in when I transition to aged care?
Centrelink plays a crucial role in aged care planning. Moving into an aged care facility typically changes your personal and financial circumstances. Centrelink will conduct a means test to determine the financial contributions a resident must make towards their aged care services. These include assessing the individual’s income, assets, and care needs.
It is very important to obtain financial planning advice around the best way to preserve your pension and structure your arrangements so that you maximise your entitlements.
5. What else might I need to consider when moving into aged care?
Beyond any contracts you enter into when moving into an aged care facility, it is also imperative to consider the impact your change of circumstances will have on your estate plan.
For anyone who does not have a Will or estate plan, now is the time to get one. For those who have completed a Will and other documents, such as an Enduring Power of Attorney, reviewing these documents to ensure they still align with their current situation and preferences is important.
Most aged care facilities require residents to have an Enduring Power of Attorney (or Appointment of Enduring Guardian in NSW) in place before moving in. This is to ensure that if the resident loses the capacity to make decisions for themselves, someone they trust has the legal authority to make these decisions on their behalf.
It is also important to consider drafting an Advance Health Directive. These documents outline your health care wishes and become legally binding on your caregivers should you be unable to communicate them as the end of life nears.
An Advance Health Directive allows you to stipulate what treatment you want to receive and refuse in certain circumstances.
Read more: The power of Advance Health Directives and seizing control of your end-of-life health decisions
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes.
At Attwood Marshall Lawyers, we are passionate about the aged care sector. Our experienced team of estate planning and aged care lawyers understand that the aged care industry is constantly changing. It is vital that individuals transitioning to care speak to accredited professionals to understand the regulations and policies that will impact their care choices and learn how to best negotiate with aged care facilities.
Our Aged Care department has three accredited aged care professionals who are well-equipped to provide valuable insights and advice across all aspects of aged care, including at-home care packages, retirement villages, and residential care facilities.
If you need any assistance reviewing your aged care agreements, drafting an Enduring Power of Attorney, or revoking an Enduring Power of attorney or creating or renewing a Will, we are ready to help you. Please contact our Wills and Estates and Aged Care Department Manager, Donna Tolley, on direct line 07 5506 8241, mobile 0423 772 555, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 at any time.
You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney or Melbourne.
