Brisbane’s Legal Lowdown: Why planning ahead for aged care gives you greater control

Jason: Hey, it’s time for this week’s Brisbane Legal Lowdown with Attwood Marshall Lawyers, where we unpack legal issues that impact the community. And this one’s a really interesting one because no doubt a lot of our listeners are going through this at the moment, making the move to aged care isn’t just about choosing a room or finding the right facility. There are legal, financial and family matters that can make all the difference.

Today, we’re going to talk about why early planning matters and the questions you should be asking before you move and sign anything. If you’ve got questions, 133 882 is our open line number or you can send us a text 0499 880 882.

We’re joined by Attwood Marshall Lawyers’ Senior Associate and Accredited Aged Care Professional Larisa Kapur. Thank you for coming in.

Larisa: Thanks for having me.

Jason: And I’m sorry you heard that discussion around the showing legs and shave legs, but we’ll move on from this. This is a pretty big topic because no doubt there are a lot of listeners listening to us now who are having to make these tough decisions about aged care. I know when I when my mum passed away and we put dad into aged care, we had no idea what to do, legally or anything. There’s a whole heap of stuff.

When someone starts planning for aged care, what happens if you don’t plan and you leave it too late?

Larisa: This is a great question, especially that a lot of people think that planning is them losing control. However, planning for aged care is you actually keeping that choice and control. So, if you’re thinking about aged care or getting to a certain age where you think, hey, I might have to look at some point in the near future transitioning, then you need to start looking and preparing early.

So, looking early means start looking at areas you want to live in, exploring available rooms and options that suit you and your family and your lifestyle. Getting in early, you’re keeping that choice and control because if you don’t plan early, what happens then is your, you know, it could be a crisis situation where you’ve had a fall at home and all of a sudden you’re in a hospital and they’re saying you can’t go back home.

Jason: You need it straight away.

Larisa: That’s right. And then you lose that aspect of time and planning, which means you might not have choices that you want, and you might be limited for choice of room or location.

Jason: Yeah, fair call. What’s the difference between a crisis admission and planned? It’s that right, so if something, if you have a fall, which is what happened to my dad. And we realised he can’t live at home anymore, and he needed it and there is a lot of emotional stuff that comes with this as well. So, I guess the planning would take, you know, a little bit of that emotion out of it. And is it wise to have your parents or grandparents involved in the planning as well?

Larisa: Well, absolutely. So, if they’re the person that’s looking to transition to aged care, I mean, you want them to have that choice, you want them to have a say. So, the best thing would be if someone thinks, hey, you know, mum, you’re getting to that age where you might need to go.

Jason: Tough, tough…

Larisa: A tough conversation to have, but it’s a good conversation because it’s saying mum, why don’t you look at where you’d want to go oppose to losing that ability. And there’s not a lot of space available. So, there’s a lot of waiting lists as well. So you want to make sure you put your name early to get a suitable room for you or for your loved one as well.

Jason: What do people need to consider about the costs and how can people avoid nasty surprises?

Larisa: Well, the first thing I would say is get proper advice. So get in, get legal and financial aged care advice. This is where they’re going to map out for you. So the financial aged care planners will map out what happens if you keep your home, sell it, rent it out. What fees you’re going to be looking at and things like that.

A big one to consider is you’re either going to go in as a fully RAD paying resident, which is you’re required to pay that refundable accommodation deposit, which is essentially you’re buying into a facility. So that is fully refundable, which means, you know, you pay for that accommodation, but when you leave or on your death or whatever it might be that comes back.

The other option is if you don’t have that lump sum payment, you pay that daily accommodation payment. Kind of like rent. You don’t get that back. That is you’re paying essentially, you know, an interest based, because you haven’t put that lump sum. A lot of people get scared because they think I don’t want to give all my money for aged care, but they need to know that this is a cost that does come back to you and it’s to pay for your living.

Jason: Yeah, fair enough. Why is it important to get advice before signing an aged care contract?

Larisa: Well aged care contracts are very complex and legally binding documents, there’s a lot of things in there that people don’t…

Jason: Is this recent? Aged Care Contracts? Is it something that’s happened recently? I don’t remember it.

Larisa: No. It’s always a thing. If you’re moving or transitioning to aged care, you need to sign a contract to go in. A lot of people don’t realise this is a binding document that covers all the terms and conditions of your stay. So, what fees you’re paying, what room you’re having, even if there’s a guarantor noted. So, a lot of people, if the person going into care has lost capacity and they can’t sign their own contract, you might have their power of attorney or their loved one signing the contract for them.

Often, there is a clause in there that names a guarantor, so this is somebody that’s going to be liable for the fees if the resident defaults on the payments. And people don’t realise by signing a contract where you’re named as guarantor, you are essentially responsible for paying the fees if they’re in arrears.

Jason: Right, Okay. No worries. I don’t know whether this is in your wheelhouse and if it’s not, that’s okay to say this, but Bob from Narangba says I have a Down Syndrome disabled brother, how do they go about setting up a will and how do they contest a will?

Larisa: Well, it’s very different to aged care, but I’m happy to talk about that. So having the testamentary capacity to do a will, it’s a legal test where you need to understand the nature of the document. You need to understand the nature of your assets and what you’re disposing. So, it depends on the person wanting to make the will, whether they have that capacity to make a will. If they’re assessed as having the ability and the understanding to make that document, then they’re able to do so. But if they don’t have the capacity, then they’re not able to just get a will drawn up and it might be a court application or something like that.

Jason: Is there anything you don’t know? This is good.

Larisa: I’m glad you like that.

Jason: Any final takeaways for us today before we go?

Larisa: Yeah, absolutely. So, in terms of aged care planning early is what gives you that choice and control. And it’s not only about aged care, get in and do your estate planning, do your enduring powers of attorney, do your documents, you know your wills, and get the advice on your contract and financial advice on your aged care, because that is what’s going to minimise the stress aspect for yourself and your family.

Jason: And you’d be pretty good to talk to.

Larisa: I’d hope so.

Jason: The legal lowdown with Larisa Kapur, Attwood Marshall Lawyers’ Senior Associate and Accredited Aged Care Professional.

Two more quick questions before we go. Late ones have just come through.

Larisa: Sure.

Jason: I’ve heard that the federal government is changing the RAD scheme. Is this correct? And will it be to the elderly person’s detriment?

Larisa: It is correct. There is a new proposed age care act that’s about to come into force scheduled for 1st of November this year. Once that hits or once it’s enforced, the RAD is going to be different. At the moment it is fully refundable. What means is what you put in, whether that’s 500,000, you get that back. However, under the new reforms, there will be a retention rate. So, what that means is, when you put down that deposit, there’s going to be a retention of 2% for the first five years. And so, you won’t get that full amount back.

Jason: Right, okay. I hope that answers your question, Scott. And one more before we let you go, could you ask Larisa if someone is on age pension and cannot afford a financial advisor, is there a list of residences? Barb.

Larisa: Okay, so let’s look at it two ways. So the first part of it, let’s look at she’s wanting to know if you don’t have the means to pay for that, you know, accommodation deposit, there are definitely options. Most facilities have a low means selection of rooms. What that means is that there are rooms that they allocate to persons who cannot fund that full RAD. And the government does a big assessment to see how much the person can contribute based on their affordability and whether they are a low means resident.

The second part of that question. If she’s wondering about aged care advice in terms of the financial plan, and she can’t afford to go see a financial planner for aged care purposes, I’d say speak to Centrelink, see if they can help out with some figures.

Jason: Alright. I hope that helps you out, Barb. Larisa, it’s been great chatting to you today. You’re from Attwood Marshall Lawyers. You’re the Senior Associate and Accredited Aged Care Professional. Look, if you’ve got any questions, reach out to Larisa because I don’t think there is anything she doesn’t know.

Larisa: Thank you so much. It’s a pleasure.

Jason: Thanks for your time.