Coleman Greig’s Plain English Guide to Seniors Living outlines the options available to people and the major issues that may arise in relation to each.

Independence is one thing that we strive to maintain as we get older. However, at one stage or another, we may all face the possibility of moving into a Retirement Village or Aged Care Facility, or arranging the move for a family member or loved one.

Depending on individual needs, a person may obtain residency in an Aged Care Facility or a Retirement Village, or alternatively they may require Community Care. So what are the differences and what should one consider from a legal point of view?

Aged Care Facilities

Aged Care Facilities are facilities regulated under the Aged Care Act (Cth) 1997 which are operated by approved providers. The type of care that is provided is ordinarily provided in either Hostels or Nursing Homes.

In order to reside in an Aged Care Facility, the person must undergo assessment by an Aged Care Assessment Team (ACAT) to determine the needs of the person and their independence levels. During this assessment, ACAT applies the principles of the Approval of Care Recipients Principals (being principals setting the criteria for eligibility into residential care).

Upon entering into an Aged Care Facility, the provider will usually require the person to enter into an occupancy agreement under which the person will have to make payment of an Accommodation Payment or pay a daily fee.

The Act generally requires occupancy agreements to contain provisions that include (but are not limited to):

1. the facility name, address and other identifying descriptions;

2. the level of care and services which are to be made available;

3. fees that are applicable to the care of the resident and policies and practices of the operator;

4. the costs to be incurred by the resident upon permanently vacating the premises/unit;

5. whether there are any respite care arrangements (if applicable);

6. complaint/dispute resolution arrangements;

7. termination rights;

8. services to be provided by Aged Care Facility; and,

9. rights and responsibilities of the resident.

Each person, having individual needs, should make themselves satisfied that the services available within the Aged Care Facility are sufficient for their needs.

Retirement Villages

Retirement Villages in NSW are regulated by the Retirement Village Act (NSW) 1999 (as amended) (the ‘Retirement Village Act’).

The definition of a retirement village within the Retirement Village Act ‘is a complex containing residential premises that are…predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex…’

There are various forms of retirement village contracts. These are usually one or a combination of a lease, strata title, loan agreement or occupancy agreement.

Before entering into a retirement village contract, the village operator must give to the proposed resident a Disclosure Statement. The form of Disclosure Statement is prescribed under the Retirement Village Act (and its regulations) and generally sets out the nature of services and facilities available at the village, location of nearest hospitals, transport availability, costs when entering and terminating the village contract and many other aspects applicable to the retirement village that may assist in determining whether that retirement village is the right one for the person.

The provisions that are usually found within retirement village contracts include (but are not limited to):

1. rights and responsibilities of residents;

2. obligations of the operator;

3. provision of services;

4. condition and location of unit/premises and its inclusions, etc;

5. financial requirements including but not limited to departure fees and recurrent charges;

6. whether the resident is entitled to any proportion of Capital Gain;

7. termination rights;

8. complaint/dispute resolution provisions;

9. village rules/by-laws.

The Retirement Village Act also makes provisions for a settling in period and cooling off period. These periods have been implemented into the law to protect the residents and make sure that they have sufficient time to understand the documentation and make sure they have made the right decision to ‘settle in’ to the village.

It is also a common practice for the village owner to appoint a manager to control the day to day operation of the village.

A person intending to enter into seniors living should ensure that they are satisfied with the location of the unit, its inclusions, services, and any departure fees together with recurrent charges and the nature of the tenure (eg, lease/strata title). They should also have a sound understanding of the terms and conditions of the village documentation.

Community Care/Family/Friend Dependent

The alternative to seniors living villages and/or aged care facilities is for a person to apply for community care/support. If a person intends to contract a community care provider to do general jobs around the home, first and foremost they should ensure that the individual is trustworthy and reliable.

In the event that the person becomes family/friend dependent, it is very important to realise that there is the possibility that the relationships can become strained over time. The arrangement may also impact on the person’s financial security, particularly if there are underlying illegitimate intentions that have been overshadowed by a need for care.

How can Coleman Greig Help?

If you, or a family member, find yourself investigating residential options for senior living, our specialist team of property lawyers can help to ensure that you have a clear understanding of the best option for you, as well as your rights and your obligations.

Retirement Village contracts and Aged Care Facility occupancy arrangements can be very complex. Unfortunately when the need arises for someone to enter into such an agreement there can also be a lot of emotion surrounding the decision or health concerns, which can add to the confusion. We can help to de-mystify the process and ensure that the facility or village of choice is indeed the right one for you.

For more information, please contact our Seniors Living team.

Disclaimer: The information provided in the document is a general summary and is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.