Brisbane’s Legal Lowdown: What the new Aged Care Act means for older Australians and their families

Sofie: It is twenty-five minutes to three on this beautiful Wednesday afternoon where we know there is still some clouds hanging about, but certainly a warm one. Twenty-eight degrees at the moment through the city and heading for a high of 31 degrees in Rockhampton.

Now every Wednesday we turn our attention to our legal lowdown with Attwood Marshall Lawyers and unpack some of these legal issues that we know impact our community. None more so than the subject we’re tackling once again today, because we know on the 1st of November, we saw some changes happen to Australia’s Aged Care Act and they came into effect where there was these new rights based approaches to care, a range of practical changes that will affect how people enter aged care, how the accommodation payments would be managed and even who can help them make those important decisions. It’s certainly something that many of us are facing, either with ageing parents or maybe it’s you navigating it for yourself.

Helping us understand some of these key changes and how the industry is adjusting, we’re being joined by Attwood Marshall Lawyers, Senior Associate and Accredited Aged Care Professional, Larisa Kapur. Welcome.

Larisa: Thank you so much.

Sofie: The 1st of November means we’ve had a couple of weeks to start to navigate what these changes are for our older Australians and their families. Larisa, I’d love to know what’s been the most common questions that are being asked of you guys at Attwood Marshall?

Larisa: Sofie, one of the big things I think that’s a hot topic is the topic of the refundable accommodation deposits. The RAD, as we say.

Even with the daily accommodation payment, which is the DAP, so essentially just for our listeners, the RAD is if you’re paying into the facility. So, you’re buying the, you know, going in with a lump sum. Then we’ve got the daily accommodation, that’s like, essentially paying like the rent.  

Sofie: Depending on the services you need, right? Is that daily service charge on top of what you need to pay, if you’re getting meals or anything?

Larisa: Oh yes, yes, absolutely. So, this is only for the accommodation part. The care aspect and services you’re getting is totally on top of that. So, I guess the question was, you know, what’s a hot topic now? So, the refundable accommodation used to be fully refundable. So, if you had paid a certain amount, you would most likely get that whole amount back.

As of the 1st of November, it’s not like that anymore. Now there’s a retention rate. So, what that means is if you pay the lump sum, you can expect for the provider to charge you 2 per cent of that lump sum for the first five years. So up to 10 per cent will be retained by the provider. So that full RAD is no longer fully refundable, it will have that retention.

Sofie: The longer you stay then the more you will pay as an additional fee from the RAD going back to the provider?

Larisa: Well up to the five years. So, you’re expected to pay about 2 per cent per year for the first five years. And then it stops after that.

Sofie: Okay. And that money, then that’s wrapped up in the RAD, doesn’t obviously increase in its value either. That just is a static amount of money?

Larisa: That’s right. It just stays as is at the time you’ve paid it.

Sofie: And then you talked about the additional fees in terms of what you ask for for care services, and what you pay as like an additional rent amount for the accommodation?

Larisa: So, I’ll just clarify. Let’s look at it as a two-staged approach. The first is your accommodation. So that’s you know if you’re buying a home or you’re paying rent. So that’s where we spoke about that RAD or the DAP. Then on top of that, there is the care fee aspect of it. Now this is quite complex, but it’s your you know, daily fees that you’re paying for your meals for your washing, for your special services you’re getting. So that care aspect of it and on top of that, there’s additional fees that are payable for, you know, some luxuries and things like that.

Sofie: At the moment, we know there aren’t enough places. Larisa, are you also having clients trying to sort of navigate what they do and at what point they look for care?

Larisa: Absolutely. And Sofie, my big warning would be start looking early while you can. There are long wait lists and we’re finding that a lot of people that are requiring care are waiting extended times in hospitals while they’re finding accommodation.

Sofie: That’s been the big news this week that we’ve got some 3000 hospital beds that are being taken up and no aged care facilities that are being built to meet this demand that’s only going to increase.

We know we’ve got an ageing population. It can mean for families though being stuck in the middle. You know, you might have ageing parents or grandparents that you know are trying to work through this process. And I think sometimes the first conversations can be the hardest.

If you look at the difference between my aged care and assessments that are required to help people stay at home and getting those facilities taken care of so that they have that independence, compared to them knowing when you have to try and get a list, that can be really variable because we know how much people can change at that sort of, you know, time in life in a six-month period.

Larisa: Absolutely. And it’s scary. So, I think the important thing is start your assessments early and think about your, or the person going into care, them on a worse day.

So, a lot of people will go in and they know that a loved one needs the assessment. The loved one will go, “Oh, I’m fine. I can do this. I can do that.” But the whole point is you need to show them how you are on your worst day so that they can assess what your care needs might be and predict.

Sofie: Which is a really hard thing for some of our loved ones who are getting older because they don’t want to show their frailty and vulnerability.

Larisa: No, they don’t. And that’s what we’re finding is that people are pretending they’re better than what they are, because of pride reasons or embarrassment, you know thinking they’ll get judged from family.

Sofie: And how important is it to have some other trusted person to help be a voice to make those decisions?

Larisa: Oh, it’s absolutely crucial.

And this is where there’s a new role that’s been introduced under this Aged Care Act called the supporters. So, there is a big distinction between what is a supporter and what is an enduring power of attorney.

I’d like to tell you a little bit about that. So, a supporter is someone that you register as the person going into care that can help you make decisions and assist you with decision making in terms of aged care and anything related to the care you’re receiving, you know, the services, or making complaints and so forth.

So, this person can be anybody and it’s someone that you trust to help you with these decisions. Whereas an enduring power of attorney, this is very different because this is someone that you appoint with a legal document that is able to engage in substituted decision making if you can’t. So, whilst it’s always the case that you know, we should ask the person you know for their opinions and so forth. But if you’re at a stage where you cannot make decisions for yourself, an enduring power of attorney can take over and make substituted decision making on your behalf.

Sofie: How do you become a registered supporter?

Larisa: So essentially the person going into care needs to say, fill out a form to essentially tell the providers or with my aged care that they have, you know this person as a supporter. Then the aged care facility will also liaise with them as well as with you in terms of your aged care.

Sofie: We know that the vast majority of our care institutes are fabulous, and I don’t necessarily want to be shining a light on the negative here, but we also need to be realistic and we have issues in our community when it comes to elder abuse. And we know that we’ve also got issues where families feel like maybe they’re not getting the quality care that they’re hoping for their loved one to have.

How do we help our listeners navigate those issues, if you think something isn’t quite right?

Larisa: Okay, so the first thing is it is sad that these things do happen. This is where the new act is trying to mitigate this by introducing these supporters and people that can essentially help communicate the older Australian’s, or the people receiving care.

Each facility has their own very distinct complaints process if you notice anything. However, if it’s something where you think, okay, this isn’t going to work with, you know, a direct complaint to the facility, you can go to the Aged Care Complaints Commission and what happens then is they can investigate on your behalf and action this.

If it’s a grave, you know, awful situation where it’s obvious there’s elder abuse. You can report that to the police as well. Absolutely.

Sofie: It’s one of those things where you don’t want to be waiting.

Larisa: Yes, absolutely. And I encourage people if they notice, I take that back in terms of the police, don’t go to the police unless it’s necessary. But I encourage people to voice their opinion and say, hey, what you’re doing here isn’t right. This person’s not getting the care they need, or whatever it might be.

Sofie: And look, the reality is that unfortunately, we also know their stories, where it’s within families as well, and the same would be said then as well.

Larisa: Oh, absolutely.

Sofie: Brian says. Sofie, could you please ask your guest if the change in the RAD is applicable from November the 1st because we know the changes came into effect, as we said just over two weeks ago, or will it affect RAD which has already been lodged with a provider?

Larisa: It’s applicable from the 1st of November, so prior to 1st of November you’re cemented in, if you’ve paid the RAD, whatever the previous law is, and it’s now as a 1st of November that it’s the retention rate that comes in.

Sofie: We’ve talked through a few of the changes. Is there anything we’ve missed in the act that you think listeners should be aware of?

Larisa: I think it’s important to note that the act is structured in a way to give the person receiving care better care, better rights, and better support. So we have to trust that this has been thought out to kind of help everyone, but I also will say it’s a complicated process and having a loved one going in, it’s very important to review the contracts that you’re signing to know what you’re signing, what you’re getting into and what the fee structures are and getting the proper advice from, you know, financial planners, lawyers, even my aged care, to know what you’re getting into.

Sofie: There is still an ongoing frustration, I think with assessments and external providers being able to get things done quickly. Do you have some faith that once the changes of the act are put into place that we have the people who are required to do the assessments? Or are you still concerned, as many of us are, that we’ve probably got a need that is greater than the resources available?

Larisa: I guess this is a hard question because we’re meant to have a more streamlined approach and assessment. It’s all meant to be done kind of from the same place. But I do worry with the demand, how the government’s going to keep up with this.

Sofie: Yeah, me too. If there are families who are listening, who are thinking about what those next steps might be, as I said, either for themselves or for a loved one who may be looking to need some sort of care, what are the top three things that they should ask a provider this month?

Larisa: Well definitely about what fees they’re looking at. They should ask about what the complaints processes are, what the safeguards are in place to ensure good quality care. And I also think a third one could be…

Sofie: The support workers making sure that they’re supporters, rather they’re registered supporters.

Larisa: Yes. Who the registered supporter is. I definitely think they need to ask for who the supporters are and who is registered, because sometimes it merges through from the my aged care and you might have put someone on there a while ago that you’re not thinking is really relevant now. They might pull through as a supporter.

Sofie: You mentioned the merging with my aged care, are we going to see a little bit of that? Will there be now, is that part of the streamlining?

Larisa: I have heard, now I I’ve not seen it myself because I don’t work as a registered provider, but I have heard that it’s merging through from my aged care, some of the details with things like this directly to the provider.

Sofie: Finally, if listeners are looking for some official guidance, when does it make sense to actually pick up the phone and get some legal guidance or is that something you should consider doing from the beginning?

Larisa: I’d say from the beginning. So, the first thing is look at your estate planning, because that’s also, what’s going to happen is you need to have these documents in place. The wills, powers of attorney and so forth. Then get proper financial advice to know whether you know the loved one needs to sell their home, keep their home or rent it out, or what the best financial outcome is. And then look at legal advice for those complex contracts.

Sofie: Yeah, and that’s it. The next part comes with whether or not they remain on some sort of a pension, whether or not they’re self-funded through this process, how they can then also protect their assets if they find themselves needing to buy in to a facility. All of those things can become very complicated.

Larisa: Absolutely. And I just want to say a lot of people rush into it. So, let’s say our loved one has lost capacity and children need to make the decision to transition them to care. They straight away assume, a lot of people assume, oh, we need to sell the home. Do this, do that. That’s not always the case. So that’s where the financial advice is going to map that out to you. Map it out what the best financial outcome will be in the end.

Sofie: There are plenty of people that you can ask the questions to, and you’ll find some of the best at Attwood Marshall Lawyers, including Larisa Kapur. Thank you so much for coming in and sharing your expertise with us.

Larisa: Thank you so much for having me.

Sofie: She is a senior associate and accredited aged care professional. These changes took place on the 1st of November and I think as Larisa just said, the best thing to do is to ask the questions first and not regret making the decisions too soon. Thank you again.

Larisa: Thank you.