Roller Coaster Ride Placement in Aged Care

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Since earlier in the year when Covid-19 made its way to Australia it’s been a roller coaster ride in my job as a Placement Consultant for Aged Care Accommodation. In Melbourne all went quiet with families tending to keep their loved ones at home during the original lockdown in March and April and then it got very busy when restrictions were lifted in mid May. I was suddenly fielding multiple enquiries and arranging tours again as most aged care facilities had recommenced showing their homes to potential residents. They had also relaxed the isolation period for residents entering care on either a permanent or respite basis. Then lockdown restrictions were again enforced on 9th July.

Up To Date Information

Gathering information for my clients about care and fees for each aged care facility and arranging tours (when available) has became more labour intensive as each facility has different procedures for touring and admissions during these restrictions.  As the health restrictions change so do the facilities’ procedures, making it an ongoing task. For prospective residents it is very difficult to navigate and they rely on my gathering the correct information and providing advice.

Of course they wonder if the different procedures will guarantee that they will be safer and less likely to catch Covid-19. It is very difficult to assess the likely outcome between the different procedures in each facility. One can only make an educated guess based on the Health Experts’ advice.

More Seeking Aged Care Accommodation

During this second lockdown I am finding there is a big difference in the number of enquiries I am receiving from families needing to place their loved ones in aged care. I think families held off from having their loved ones admitted to an aged care home during the first wave, and now that we have a second wave they can’t continue to hold out until we are Covid-free, as there is no knowing how long it will be.

However, with such a large developing number of aged care homes in Victoria reporting cases of Covid-19, clients who had chosen their new home last week are now questioning whether it is safer to stay at home until aged care homes are clear of the virus.

Screening Process 

All aged care homes have a similar screening process for residents before entering a home. Everyone must show evidence of a current flu vaccination, submit to a temperature check and answer questions relating to general health and whether they’ve had contact with someone who might have Covid-19.

Restrictions on Touring Aged Care Faciilties

As Victoria is now in Stage 3 restrictions, most aged care homes have suspended all ‘meet & greet’ appointments for tours. Meetings can be arranged so that a client can speak to the staff over the phone, via Skype, Zoom or Face Time. Intending residents can view photos of the home’s interiors and suites and have virtual tours. There are still some aged care homes that provide restricted tours allowing viewing only of the resident’s proposed new bedroom with no interaction with other residents in the home.

Professional Help

I’m finding that now, more than ever, people are seeking my help as a Placement Consultant to find the most suitable aged care facility for their loved one or a client. With so many variables to consider now and a changing landscape it is a comfort to many to be able to use a professional to assist them.

 

 

 

 

Recommendations Have Been Made To Address Elder Abuse

In my work as an Aged Care Placement Consultant I sometimes come across abuse of my elderly clients and I take this very seriously. I attended the the 4th National Elder Abuse Conference 2016 in Melbourne last year following where they announced that a national enquiry into elder abuse was to be conducted by the Australian Law Reform Commission. The Commission has come up with a range of recommendations and have accepted responses to those recommendations. They will announce the final recommendations in August 2017.  I have been interested to see what these recommendations are and note that some refer to guardianship, enduring documents, aged care as well as Centrelink payments and family agreements.

In life each adult has personal and lifestyle decisions that need to be made and they also need to be able to manage their own financial affairs. However, if the tribunal is satisfied that a person no longer has the capacity to manage those aspects of their life, due to a loss of legal capacity, it will appoint a Guardian and Financial Administrator. Typically, the person’s family member would be appointed if there is one available to perform the role. Only where there is not a family member would an external party like the State Trustees be appointed. I have on occasion been asked to find suitable aged care accommodation for a client by a State appointed Guardian.

Unfortunately, because the Guardian and Financial Administrator has complete control over the elderly person of both financial and lifestyle matters it does make the elderly person vulnerable and there is a risk these arrangements can be abused. This could be deliberate where the Guardian and Financial Administrator uses the powers to take money away from the person under the financial administration order, but the enquiry found that the most common type of elder abuse is really mismanagement of the funds through misunderstanding or confusion.

So the Commission’s recommendations are that more information about the nature of the role is made available in tribunals and that people accepting this appointment sign an undertaking that they understand the nature of their obligation. They believe this would minimise the risk of someone taking on the role without understanding their responsibilities and the scope of the role.

The best way to protect a person when they lose capacity is to be prepared before it happens and put in place enduring documents where the person appoints someone in their family they consider is best suited to make decisions on their behalf. The enquiry found that one of the risks with enduring documents is that they can be used after they are revoked. They made several recommendations, firstly to establish a national online register of enduring documents so documents can be verified to ensure that they only operate when they are genuinely authorised by the person. Secondly, to develop a suite of national safeguards that include enhanced witnessing requirements so a person isn’t under duress when signing, certification to ensure the person understands what they are signing, protections from attorneys’ conflict of interest; so they don’t make decisions to benefit themselves rather than the principal.
Also the language used for these roles was assessed and the Commission proposes that they be renamed representative’s agreements, reflecting that when you’re acting on behalf of someone else under these document you’re essentially representing the person.  Another recommendation was for a mechanism for low cost compensation be available in cases where a person has been financially abused.
These recommendations seem like sensible and simple solutions that would help to offset the risk of elder abuse that can occur when a person loses capacity. Next week’s news blog will explore the problems of elder abuse in aged care and the Commission’s recommendations.

Enduring Powers of Attorney and Guardianship Help Offset Elder Abuse

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Powers of attorney have been used for centuries. The power of attorney gives legal power to a person (attorney) to deal with financial and property matters on behalf of the person (principal) making the power. Originally, under the common law, a power of attorney terminated automatically when the principal lost legal capacity through loss of capacity (such as dementia) because the agent (attorney) could not by law make any decisions on behalf of the principal that the principal could not make themselves.  To rectify this situation legislation was introduced in the 1970’s and 80’s to establish ‘enduring’ powers of attorney, that endure beyond when the principal has lost capacity for decision making.  A person can now appoint a trusted person (or persons) as enduring power of attorney to act on their behalf should they lose capacity, upholding important principles of choice and control. This avoids the need for a tribunal appointed decision maker and may also help protect against elder abuse.

This was a great improvement, particularly for the elderly.  However, under law it was not possible to appoint another person to make lifestyle or personal decisions regarding matters like medical treatment or the most appropriate accommodation for a person who has lost capacity.  Enduring guardianship was first introduced in SA in 1993 to address this, followed by all other states and territories. In my role as an Aged Care Placement Specialist I often work with enduring powers of attorney and enduring guardians.

Currently, although all states and territories recognise enduring documentation from other states and territories there are differences.  For example, in Victoria and Queensland the enduring power of attorney and guardianship are in one document, whereas in New South Wales it is two separate documents. South Australia has a separate process of enduring powers of attorney for financial matters and advance care directives legislation, allowing a person to appoint a substitute decision maker (equivalent to an enduring guardian).

Obligations of the attorney were not set out but were defined by common law and equitable fiduciary duties, such as duties of loyalty, duties of due care and diligence whilst guardians were expected to act in the ‘best interests’ of the principal. Recently, Queensland and Victoria have passed legislation that set out principles to guide decision making by attorneys, seeking to uphold the fundamental rights of the principal. This approach is not applied consistently across the states and territories. The changes made in Victoria and Queensland will certainly help to clarify these very important roles and decision making at a critical time in the principal’s life.

If you seek more detailed information read the document on Enduring Powers of Attorney and Enduring Guardianship by the Australian Law Reform Commission.

Recommendations to Help Curtail Financial Elder Abuse Welcomed

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The Australian Law Reform Commission has recommended a national register of people holding power of attorney in a discussion paper on elder abuse, as they have found that enduring power of attorney is being used by some people as a “licence to steal”. At present the system has no way of verifying attempts to withdraw or transfer money on behalf of an elderly person. The report recognises that “early inheritance syndrome” is a form of financial abuse where children try to get financial gain out of their parents before their death.

Following widespread reports of psychological, physical and financial abuse and neglect of elderly people by relatives, friends and parents the Attorney General, George Brandis, established the enquiry by the ALRC in February 2016. About 6 per cent of elderly Australians become victims of elder abuse annually, suffering harassment, assault, theft, bullying, forced sale of assets and property. Some are forced to pay bills and have their properties taken over.  I wrote of a client of mine who suffered this situation in a blog in June  and have seen other examples of elderly abuse in my role as a Placement Specialist for aged care accommodation. It is distressing to know this sort of abuse is going on and I am relieved to see recommendations coming out of this report which will hopefully help to curtail the abuse.

“In developing the proposals in this discussion paper we have worked to balance the autonomy of older people with providing appropriate protections, respecting the choices that older persons make, but also safeguarding them from abuse,” Professor Croucher said in a statement calling for community feedback on the proposals by February 27th, 2017.

Some of the recommendations include:
 A provision in the Code of Banking Practice to prevent financial elder abuse.
Two people be required to approve access to a person’s bank account.
People who are carers, bankrupt, prohibited from directing a company or have a criminal record of fraud or dishonesty be prevented from being enduring attorneys.
It’s a shame there’s not a greed meter that could be applied to anyone who is appointed as Power of Attorney.  Of course, most relatives are very caring and respectful in this role and, is always the case with abhorrent behaviour, it is only a few that create problems.

Placing Clients in Aged Care Facilities Under Guardianship Orders

Visiting Regis Aged Care Facility in Malvern.

Visiting Regis Aged Care Facility in Malvern.

Currently I am working to place two clients in suitable aged care facilities who are under a Guardianship Order. Generally, the clients who are referred from the Office of The Public Advocate (OPA), are under guardianship because they do not have the capacity to make decisions regarding their accommodation and lifestyle. Often a person appoints a trusted family member as their guardian at the time they appoint a Power of Attorney, knowing they will see their wishes are carried out. However, if they haven’t appointed a guardian and they don’t have family or the family do not want to be involved or family members cannot agree a guardian is appointed from the OPA. Usually an administrator is also appointed to take care of the financial interests of the person if there’s no power of attorney.

For example, in my role as a Placement Specialist I was asked by an appointed guardian to find suitable accommodation for a 67 year old man who has a history of alcohol abuse and has become estranged from his children and brother. Finding a client a new home is not difficult, but trying to align the various decision makers can be.

When facilitating a placement in these circumstances, I am required to liaise with the guardian, the administrator and sometimes various factions within a family who have differing opinions. Firstly, I need information on the client’s financial status before I even approach a facility and this can take quite some time, involving waiting in queues at call centres and numerous emails. The accepting facility wants paperwork completed and residential agreements signed and this can take days or even weeks and a lot of liaising on my part. There is often a tight time frame involved too as the client is usually transferring from a hospital or transitional care.

A Loving Daughter-In-Law Advises Setting Up Enduring Power of Attorney and Guardianship

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I recently read a very heart-warming story about a woman who took on the role of primary carer of her father in law in the last year of his life as his dementia developed and he became unable to look after himself. He did eventually have to go into aged care accommodation, but she was a wonderful support to him prior to that time, living in the spare room of his unit and cooking and caring for him in a very loving way.  Fortunately, he liked her and appreciated her care, so she was not challenged by aggressive or unpleasant behaviour, as can be the case with dementia sufferers.  Not everyone is in the happy situation of being able to completely give over their time and life to a loved, aged family member and so need to find suitable aged care accommodation for them at an earlier stage.

At the end of her story she made a very good point that we should all have, regardless of age, an enduring power of attorney and guardian appointed. The role of a guardian is to make lifestyle decisions, such as where you should live, as well as give their consent to medical, dental and health care services generally and the role of a power of attorney is to handle your legal and financial matters and make relevant decisions regarding these. Under the new Victorian legislation these roles have been combined, however previous appointments made under the old legislation before September 2015 still stand. You will find more information about the new legislation here.  This role can be taken on by a trusted family member or an organisation.

Rules regarding these roles differ from state to state. A good starting point is to have a visit with your Solicitor, who can advise you and help set this up.  You may rest assured that these roles only come into play if you feel you can’t manage your affairs yourself or you are not fit to do so, for example, if you are suffering from dementia, illness, acquired brain injury  or mental illness.