Milliners (or hat makers) are in clover at various times of the year, think Melbourne Cup.
But milliners and aged care you ask?
In this context, I have been trolling laboriously over the new aged care legislation and other regulations to identify sources of uncertainty or lack of clarity which could fertilise an already growing field in aged care – complaints and disputes. Often, they arise from a lack of precision in the law or even worse, a cleavage between state and federal law.
Nowhere is this more apparent than in the burgeoning area of substitute decision making, a prominent and vital component in residents’ rights and good quality care.
In the last 20 years or so, we have witnessed a trend, both at state and federal level, to privatise substitute decision making for the incapable – bleeding that function away from the hands of the traditional benevolent bureaucrats, such as the Public Trustee. The prevailing theme has been to repose such decision making predominantly in the hands of family while at the same time, emboldening individual decision-making rights.
This has led to a phalanx of legislative ‘hats’ created by disparate pieces of legislation, again state and federal, to not only expand this privatised regime, but to somehow ensure it works seamlessly and on a user-friendly basis. Complicating this intricate web has been the development and recognition of a grey zone or sub species of decision makers, best described as supporters or helpers of individuals seeking, or purporting, to make their own decisions.
Here are just some of these ‘hats’:
- Enduring Power of Attorney
- Enduring Guardian
- Supportive Attorney and Plan Nominee (NDIS)
- Administrator
- Guardian
- Centrelink Payment and/or Correspondence Nominee
- Centrelink Authorised Person to Act on Behalf of a Recipient
- Informal Decision Maker
- Authorised Signatory (Bank Accounts)
- Restrictive Practice Nominee
- Guardian for Restrictive Practice
- Regular Representatives and Authorised Representatives (My Aged Care)
When considered with other laws, both state and federal, it is indeed a pandora’s box. Further, we are now in a situation where the maze created by lawmakers has, in my view, extended an already developing trend – the creation and extension not only of residents’ rights but what I call, family rights. Apart from family law, there are few other areas of law that seek to protect broader ‘family’ rights. A stretched analogy might be corporations law creating rights and obligations on corporations as an entity, in addition to its constituent elements – office holders and shareholders.
So, in this context, let’s examine the new Aged Care Act and what this trend may mean for complaints or disputes specifically.
Building on a previous dissipation of the decision-making/supporting regime in aged care, the new Act creates a position known as a ‘Registered Supporter’. In summary:
- They cannot make decisions but are appointed by an aged care recipient to support them to make decisions and help them access, understand and communicate information with others such as an aged care provider;
- They can be anyone, usually a friend or family member;
- You can have more than one;
- They must be registered using a form, or through a My Aged Care online account, and can be registered without the aged care recipient’s consent where that person is already a decision-maker such as an Enduring Power of Attorney;
- A Registered Supporter can also be a decision maker, such as an Enduring Power of Attorney; and
- Persons previously known as Regular and Authorised Representatives will, from 1 November 2025, become Registered Supporters.
I’m sure that’s all clear.
What is clear to me, as it has been in the past, and based on my over 20 years of experience in aged care, is that the diversification of players and roles in this space creates contorted functions exacerbated by a tension between decision makers and decision supporters, exacerbated by the potentially numerous people who can perform these roles all at the same time.
While it represents good intentions in the facilitation of formal family involvement and input into the quality of care for a mum or dad in aged care, as human experience teaches us, too many cooks can spoil the broth.
The system creates a maelstrom of difficulties for providers in balancing the interests of decision makers and supporters. It can lead to the creation of an artificial playing field where supporters are inexorably put on the same level as decision makers. They are not. That will lead to disputes about roles and functions between them and providers.
More significantly, and as my experience teaches me, it will lead to increasing tension and disputes between decision makers and supporters, all usually within the same family. Family disputes over aged care issues are destructive of family harmony and unity and disastrous for ageing parents in their most dependant and vulnerable period of life.
From my perspective it behoves:
- Aged care providers and their staff to have a clear and fundamental understanding of the role of decision makers and supporters;
- Families to understand the same; and
- Communication between all concerned!!
It also requires all those involved to nip brooding disputes, particularly demarcation disputes, in the bud – to confront the simmering issues early and to sit down and talk, not go off and confront each other at 10 paces. It may even require a good bout of facilitation – of parties being shown the meaning of the system or, at worse, a mediation to resolve any emerging imbroglio.
Mark my words.
