Note 1

The consultation period has ended for the Federal Government’s Aged Care Bill and implementation has been delayed until 2025. Our firm’s submission regarding the Bill was made in March 2024 and we await publication of the document on the Department’s website, along with other parties that submitted feedback. For more information about the implementation of the new Aged Care Act, please see https://www.health.gov.au/our-work/aged-care-act/rights.

This delay has allowed us to continue to consult with our clients, referrers and collaborators about how the new Aged Care System could impact the lives of older Australians and inform how we deal with these changes in our day-to-day practice.

Here is a summary of some key outcomes of our consultation that are shaping how we advise our clients now. There are four matters of concern for clients and their advisors to consider:

  1. What a person writes in their Power of Attorney or Guardianship document has no immediate effect on how that representative can act with respect to the rights of a person under the Aged Care Act. The holding of a Power of Attorney or Guardianship, or counterpart appointment in any State or Territory, simply qualifies that person for consideration by the System Governor to be appointed as a supporter or representative of a person receiving federally funded aged care services. A supporter or representative under the proposed new Aged Care Act only has the power, authority and function given to it by the delegated authority from the System Governor of the Aged Care System.
  1. On current drafting, the volunteers working for an aged care provider will be caught by the full liability of a paid aged care worker. There appears to be no vicarious liability of an aged care provider for the acts of volunteers who assist it in the delivery of services. The impact of this on the availability of volunteers to support the paid aged care workforce in the future is unknown.
  1. We praise the shift of the new Aged Care Act to a rights-based participation model that aligns to the foreign treaty compliance obligations of Australia. However, we note that the Government has taken an outcomes focus on how supported decision making may work. There is little or no acknowledgement that the older person has a right to make decisions irrespective of their ability and that decision making capacity is not diagnosis bound. There is also no apparent appreciation of how supporters and representatives are to deal with a decision maker once doubts about their capacity arise. The resources available through State and Territory governments do not appear to have influenced this draft of the new Act in this regard.
  1. The function of the Act is simply to control access to aged care services funded by the Commonwealth Government and no more. There is no attempt in this version of the Act to deal with the inequity that can result from the oIder person NOT being able to deal with the complexity of decisions proposed by Chapter 1 of the Act. How supporters and representatives of a person are intended to guide a person in these choices and document those decisions is unknown. How a person with declining decision making ability is meant to safeguard the administration of his or her best interest cannot be identified at this time.

For now, legal practitioners and families are left to their own resources to deal with these complexities.

Together with our community of practice, we are working to fill this void with practical guidance and expert solutions that can be used where they are so critically needed.

We continue to evolve our responses to these problems, mindful of our responsibility, where we can, to promote the will and preference of our client and mitigate the risk of abusive or coercive conduct emerging in the administration of their affairs.

To work with us and for support in this area, please contact us.