Maher, Brian --- "Retirement Villages and Aged Care Facilities" [2003] ElderLawRw 6; (2003) 2 Elder Law Review 9
RETIREMENT VILLAGES AND AGED CARE FACILITIES
Brian Maher[1]
The issues involved in agreements concerning retirement villages and aged care facilities are somewhat different than the ‘normal’ type of conveyancing transaction with which incoming residents may have become familiar at earlier stages of their lives:
| • | The agreements are not standardised and tend to be fairly long and reasonably complex. |
| • | The type of agreement varies according to whether it is in respect of a retirement village, hostel or nursing home. |
| • | Broadly speaking, the agreements cover topics such as the ‘purchase price’ or other amounts paid by residents, a machinery for repayment on termination, vacation or death, the proportion or amount retained by the operator (usually based on the length of residency), whether the operator or resident’s estate has carriage of the ‘re-sale’, whether any increase in value (or a proportion of such increase) accrues for the benefit of the resident (or resident’s estate). |
In addition residents are bound to comply with rules or by-laws governing the particular style of accommodation.
| • | Many facilities offer three tiers of accommodation - self care, hostel and nursing home. Many residents are able to transfer to hostel or nursing home if their health requires this but no guarantees can be given by the operators that these levels of accommodation will be available. |
| • | Taking up residence frequently requires sale of the resident’s home. Arrangements can usually be made for residents to move in with provision for payment of the ‘purchase price’ within say six months, to give time for a sale of their home. |
| • | Depending on the type of accommodation involved and the assets of a resident, there may be Centrelink or health benefit implications concerning the length of the vacancy of the home prior to sale or the levels of Commonwealth health benefits payable for hostel or nursing home accommodation. |
| • | In respect of all of these things there can be residents capable of making their own financial decisions and those who have lost capacity to do so. |
| • | Those able to make their own decisions would normally seek the assistance of a professional adviser such a solicitor or say the Public Trustee (where the Public Trustee holds a power of attorney for that person). All of these arrangements would then be discussed in detail with the resident, whose instructions would be sought and followed. |
| • | Where a resident has made an enduring power of attorney and subsequently loses capacity to make financial decisions, the attorney is the one to make the necessary financial arrangements such as signing agreements, sale of home, liaising with Centrelink and health authorities etc. In these situations there would necessarily be less input by the resident personally - although naturally the attorney would be looking to act in the best interests of the resident at all times. |
| • | A person who has lost capacity to make financial decisions may also have lost capacity to make lifestyle decisions, including decisions as to where to live. In this regard, the person may have already appointed an enduring guardian to make such decisions in their best interests. If no such appointment has been made (in anticipation of becoming so incapable) the Guardianship Tribunal can appoint a guardian to make lifestyle decisions. The guardian would then have substantial input into the decision to move and the selection of an appropriate aged care facility. |
The making of a power of attorney with the Public Trustee, for example, has the effect of relieving residents and their families of a lot of legal and financial worries during what can be a traumatic time in their lives. Similarly the appointment of an enduring guardian by a person (to come into effect if the person should become incapable in the future of making lifestyle (and health) decisions) facilitates the care of that person in time of need.
[1] Acting General Counsel for NSW Public Trustee