In our fourth series update focused on the Aged Care Bill 2024, we explore the new role of supporters, which is centred around upholding the will and preferences of older people.
The Aged Care Act 1997 (Cth) (Current Act) does not provide for the formal appointment of substitute decision makers for care recipients, except in relation to restrictive practices. Historically, this has created uncertainty for providers in operation, in particular those operating across multiple jurisdictions.
Generally, under the Current Act, decisions are made in one of three ways: by the individual themselves, by representatives in certain limited circumstances, or by substitute decision makers formally appointed under state-based legislation, such as an enduring power of attorney. The Bill seeks to clarify the existing position by legislating the appointment process and duties of the two supporter roles.
Supporters
Under the Bill, a supporter is a person authorised under the law of a State or Territory to make decisions on behalf of an individual, such as a guardian or enduring power of attorney. Supporters authorised under such arrangements are not required to be registered with the System Governor to make decisions on behalf of an older person. However, supporters should have their appointment registered with the System Governor to ensure they are correctly listed as a contact to receive all information relevant to the older person. In a welcome change, the Bill overcomes sector concerns raised to the Exposure Draft about potential contradictions in appointment processes under State and Federal legislation, by requiring the System Governor to register a person who is a guardian or similar position upon application for registration.
A supporter's role is to assist the older person to the extent necessary to make their own decisions. As part of this role, supporters have the power to request, access or receive information or documents, as well as communicate information on behalf of an individual, including their will, preferences and decisions. Importantly, supporters are restricted from making decisions on behalf of an older person unless the decision is authorised by the scope of their appointment under State or Territory legislation.
Consistent with the Exposure Draft, the Bill permits more than one person to be registered as a supporter. This recognises that older people often have multiple people who provide support to them throughout their aged care journey. Where more than one supporter is registered, supporters will be able to make decisions together or individually.
Decision-making supporter
The System Governor may appoint a person who is a registered supporter as a 'decision-making supporter’. Such an appointment will only be available in exceptional circumstances and does not preclude an older person from participating in, or making, their own decisions where they are able to do so.
Aligned with the Bill's aim of promoting individual autonomy, the appointment of a decision-making supporter will only be made as a matter of last resort and in limited circumstances. For example, in cases of emergency or where an individual who does not have a validly appointed supporter and experiences a loss of capacity. Notably, ‘emergency’ is not defined in the Bill.
Decision-making supporters must first ensure that they maintain the ability of the older person to make their own decisions, and refrain from doing a thing on their behalf unless they cannot do the thing, or do not want to do the thing themselves. A decision-making supporter is also required to take reasonable steps to consult any other supporter of the older person, and where there is no such person, they are required to take reasonable steps to consult with any family members or other persons who have a close continuing relationship with the individual. For example, where a decision-making supporter is a trusted family member who doesn’t necessarily spend time day-to-day with the individual, it might be appropriate to consult with that individual’s carer, nurse, friend, or other family member before making a decision on their behalf.
Remaining consistent with the current requirement, a decision-making supporter is prohibited from consenting to restrictive practices. Supporters will still be required to follow a restrictive practices hierarchy, which will be prescribed in the soon to be released Rules.
Duties
The Bill places various duties on both supporters and decision-making supporters when carrying out their role, including the requirement to:
- promote the will, preference and personal, cultural and social well-being of the individual;
- act honestly, diligently, and in good faith; and
- avoid or manage any conflict of interest and to inform the System Governor if a conflict arises.
While these duties have been incorporated into the Bill, it remains unclear the exact ambit of the supporters and decision-making supporter roles.
Penalties
Notably, the Bill introduces penalties for persons who abuse their current or former position as a supporter. A supporter commits an offence if they exercise their influence, engage in any conduct, or use any information obtained through their position as a supporter, with the intention of dishonestly obtaining a benefit or causing a determinant to the individual.
Supporters or former supporters who commit an offence will be subject to a maximum of 60 penalty units.
Suspension and cancellation
To protect the older person, the Bill empowers the System Governor to suspend a supporter in certain circumstances. Because a decision-making supporter is required to be a registered supporter, they will also have their powers suspended in such cases.
Situations where a supporter may be suspended includes where the System Governor has reasonable belief that the supporter has caused, or is likely to cause, physical, sexual, financial, psychological or emotional abuse or neglect to the individual, or has used information provided to the supporter for a purpose other than what is permitted under the Bill.
Where supporters receive notice of their suspension from the System Governor, they will have 28 days to provide a statement setting out the reasons why their registration should not be cancelled.
An improvement?
As a supporter must be registered, there remain two pathways to be entitled to make decisions: under the aged care legislation and under State-based legislation. It remains to be seen how this will be operationalised, with the Department indicating it is preparing to publish guidance to clarify the position.
Resources
Access our other updates in this series below:
To stay informed of our latest updates, we invite you to join our mailing list. Please contact Penelope Eden on the email below to be added to the list, or to discuss our substitute decision making tool available for purchase.
Our experienced Aged Care Team is here to assist you through these sector reforms. We are working closely with our clients to tailor solutions for their circumstances, as well as developing package offerings. We would be delighted help your organisation.
