Aged care agreements

If you are not sure about the aged care agreement seek independent legal advice from a solicitor who understands the Aged Care Act. Our legal service can advise you.

Call our free, independent and confidential phone service on 02 9281 3600

What must be included in the contract?

The agreement must include the following:

• resident details
• provider details
• the date when the provider will begin to provide the services
• the date when services will end where residence services are not employed on a permanent basis
• the levels of care service to be provided
• information about fees, charges and payments
• the resident’s responsibilities
• how the provider deals with complaints
• the reasons why a resident may be asked to leave
• how to seek alternative accommodation if required

What are the responsibilities of the provider in drafting the contract?

The Australian Government Department of Health requires the resident agreement to be written in plain language and be readily understandable by the care recipient. While resident agreements can become lengthy and complicated it is important that the prospective resident understands and agrees to all fees and conditions set out in the agreement. The provider is responsible for making sure residents understand what is in the agreement. If you have any doubts, always seek external legal advice before signing the contract.

It is important to know that a resident can choose to agree to the details in the resident agreement without actually signing it. If the resident chooses this course, the provider must record all discussions with the resident, and what the resident has agreed to.

A resident agreement should be provided to the resident involved before or when they move in. A cooling-off period of 14 days is triggered during which the resident may withdraw from the agreement. The provider must then refund any amount paid by a resident under the agreement.

The provider must review and update the resident agreement if the resident’s care needs change or if the resident asks the provider to review it. Such reviews should be part of ongoing care discussions.

What do I need to know?

Do not sign any agreement that commits you to do things that you are not required to do. It is much easier to get the agreement right before signing it than it is to rectify it after it has been signed!

Amend the document and have all parties initial the alterations. If the aged care provider insists that you sign an agreement that you are unhappy with, Seniors Rights Service recommends that you walk away.

Seniors Rights Service recommends that you only sign an agreement that reflects the exact conditions under which you are entering the aged care home.

If you are not sure about the aged care agreement seek independent legal advice from a solicitor who understands the aged care act.

Clauses to look out for in your aged care agreement

Seniors Rights Service has identified a number of problem clauses that are included in standard Resident Agreement documents. They should be closely scrutinised before you sign:

• There may be a clause that indicates that the appointment of a guarantor is compulsory. There is no requirement in the Act that a guarantor be appointed. Seniors Rights Service suggests that the words be struck out or ‘We require’ be replaced by ‘If’.
• There may be a clause that indicates that the agreement is binding on heirs. Seniors Rights Service suggests that the words ‘the heirs’ be replaced by ‘your estate’.
• Check closely by comparing with Specified Care and Services that you are not being asked to provide items the care provider is obliged to provide.
• Seniors Rights Service is unaware of any provision in the Act that allows an aged care home to request a resident pay for the cost of cleaning the room except where the resident wilfully causes destruction or damage.
• Being asked to provide a copy of your will. Whilst this is in the interest of the estate and to some extent the service provider, there is no legislative basis for this.
• If an organisation holds personal information about you, it must allow you to access the information if you request it. The exception, in relation to health information, is if access would pose a serious threat to the life or health of any person. There are other limited exceptions (see National Privacy Principles #6).
• The organisation cannot charge a fee for lodging an application for access to your personal information. However, they can charge a fee for reasonable administrative costs such as photocopying and postage expenses. If you request your records from an organisation and they refuse you the right to access or correct your records, you can complain to the Australian Information Commissioner (1300 363 992) under section 36(1) of the Privacy Act 1988 (Cth).

How am I protected from exploitation by aged care workers?

Everyone has the right to a safe, respectful and enjoyable aged care experience.

Aged Care Code of Conduct describes how aged care providers, their governing persons (for example, board members), and workers (including volunteers) must behave and treat people receiving aged care.

Aged care staff should not:

• Operate your bank account unless you give proper authority
• Act as power of attorney
• Act as executor of your estate
• Sign credit cards
• Offer financial advice
• Offer to buy something you own
• Accept loans or gifts, including benefiting from your will.

If you do give proper authority to the aged care service provider to make transactions on your behalf, they are obliged to keep written records of these transactions.

Seniors Rights Service is a fully accredited Community Legal Centre.

Call our free, independent and confidential phone service on 02 9281 3600

Please note – this is general information only. It is not legal advice. If you feel you need legal advice, please speak to a Seniors Rights Service solicitor.