LawCouncil

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LawCouncil
01' ALSl'RAL!A
5 May 2014
Aged Care Legislation Section
Ageing and Aged Care Division
Department of Social Services
By email: agedcarelegislation@dss. gov. au
Dear Sir/Madam
AGED CARE REFORM: EXPOSURE DRAFT SUBORDINATE LEGISLATION
Irefer to the second release of the Exposure Drafts on Aged Care Principles. The Law
Council has consulted with its National Elder Law and Succession Law Committee (the
Committee) on these Exposure Drafts
The Committee considers that the Exposure Draft'User Rights Principles 2014' should
make clearthe extent of the authority that a person representing a care recipient must
hold in order to lawfulIy commit a care recipient to an agreement under the Aged Care Act
7997 (Cth)
Section 96-5 of the Aged Care Act 7997 (Cth) enables a person 'representing'the care
recipient to enter into an agreement on behalf of the care recipient with an aged care
service ifthe care recipientlacks capacity. The following types of agreements are
provided for in the Act
. Accommodation bondagreements;
. Accommodation chargeagreements;
. Homecareagreements;
. Extra serviceagreements; and
. Residentagreements
Accommodation bond agreements and accommodation charge agreements will be
replaced by 'accommodation agreements' as a result of the amendments to the Aged
Care Act1997 (Cth) commencing on I July 2014 by the Aged Care (Living Longer Living
Baled Act 2073 (Cth)
Section 52F-2 of the Aged Care (Living Longer Livihg Better) Act 2013 (Cth) prescribes
the process for an aged care provider to enter into an agreement with a care recipient or
their 'representative' but it does not provide any guidance on the extent of the authority
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that a person 'representing' a care recipient must hold in order to lawfulIy commit a care
recipient to an agreement under the Aged Care Act 1997 (Cth)
The Aged Care Act 1997 (Cth) does not provide for any criteria that needs to be met
before a person can be considered a 'representative' of a care recipient who lacks
capacity
In regards to accommodation bond agreements, s 23.30(5) of the current User Rights
Principles provides that a person 'authorised' to sign documents can enter into an
agreement on behalf of a care recipient ifthe care recipient has a cognitive impairment.
The term 'authorised'in the current User Rights Principles provided some, albeit
insufficient, guidance on the criteria that needs to be met in order for a representative to
enter into an agreement on behalf of a care recipient
The Exposure Draft 'User Rights Principles 2014', however, does not contain an
equivalent to s23.30 of the current User Rights Principles
It is therefore unclear whether the legislature intends the use of the term 'representative'
in section 96-5 Aged Care Act 1997 (Cth) to be a new form of representative authority for
the purposes of agreements or whether it is simply a recognition that formal appointments
otherwise held will be valid forthe purposes of agreements under the Aged Care Act 1997
(Cth)
The Law Council considers that the Exposure Draft 'User Rights Principles 2014' should
make clearthe extent of the authority that a person representing a care recipient must
hold in order to lawfulIy commit a care recipient to an agreement under the Aged Care Act
7997 (Cth), in particular to clarify the meaning and effect of the term 'representative' as
used in the Aged Care Act 7997 (Cth)
The Law Council considers that this would ensure that agreements are enforceable and it
would provide clarity on the criteria that needs to be fulfilled for a person to enter into an
agreement on behalf of a care recipient who lacks capacity
Please contact Valerie Perumalla on (02) 6246 3750 or
valerie. perumalla@lawcouncil. asn. au if we can provide any further information.
Yours sincerely
A'\d"~^I' '
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MARGERY NICOLL
DEPUTYSECRETARY-GENERAL
L_Aged Care Reform_ Exposore Drafts_2014_05_02_vp_edit(4) amended (5)
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