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“I have been a carer for my Mum for years, now my siblings are banning me from visiting her. I’m devastated. I need urgent help.” – Aged Care Justice Complainant
Unlawfully banning family members or friends from visiting a loved one in residential aged care has devastating consequences.
Aged Care Justice (ACJ) has created a series of Fact Sheets to support the aged care community in response to complaints from people banned or restricted from visiting their loved ones.
The laws in Australia are complex, and differ in each State and Territory, so specific knowledge is required to prevent misuse and abuse of the powers to ban visitors in aged care settings.
“The person banning the visitor may be acting beyond their power. What we have found is that a person with some designated authority believes they have the power to control who the aged care resident associates with, and that’s not necessarily accurate.”
– Anna Willis, Solicitor and ACJ CEO
The law protects aged care residents, who are presumed to have capacity to make their own decisions on who can visit, and their wishes should be respected by family, friends, and the aged care facility.
A person can make decisions on behalf of an aged care resident, including who they can associate with, if it has been determined the resident is unable to make their own decisions, that is, they have ‘impaired decision-making capacity’.
However, people making decisions for an aged care resident must be formally appointed in accordance with the law of the State or Territory in which the affected aged care resident resides. The law provides specific requirements for people to follow when making decisions on behalf of someone else.
A common misunderstanding is that a spouse or a close family member, or a person holding an Enduring Power of Attorney for financial matters, can ban a person from visiting an aged care resident. This is not the case, as you must be appointed with the authority to make personal decisions which includes restricting visitors.
If you have been banned from visiting someone who resides in residential aged care, you need to know your rights. ACJ has provided Fact Sheets which provide general information and include:
who does and does not have the power to ban
in what circumstances someone can make a decision on behalf of the aged care resident
the obligations of the aged care facility
what a banned person can do if they want to challenge the person applying the ban
The AJC says the laws in this area are too complex and have a significant impact on families.
University of Melbourne Law Professor, Ann O’Connell, says that reform is needed. Ann says,
“The existing laws relating to enduring documents are extremely complex and jurisdiction specific. Adopting a uniform approach would bring benefits because the law would, presumably, be based on current best practice and allow for consistency in oversight. A uniform law would benefit national providers who operate in different jurisdictions and enable national education and resources. Strengthening witnessing requirements of the enduring document and establishing a national register would be added safeguards, but they would require national uniformity.”
The Fact Sheets will promote better understanding of the rights of aged care residents, and the obligations of decision makers and aged care facilities in restricting visitors.
“A resident of an aged care facility is often declining in health; they’re getting older and more frail. It’s important for them to have access to family and friends. It is equally important for family and friends to have access to them. To take that away from someone is quite serious and damaging.”
– Sue Williamson, ACJ Chair and Dentons Partner
Aged Care Justice is a not-for-profit group of volunteers incorporated in Victoria pursuant to the Associations Incorporation Reform Act 2012.
It was established in October 2020, by senior legal and medical professionals. Aged Care Justice’s current Chair is Sue Williamson, a partner with Holding Redlich, and actively involved in volunteering in the palliative care industry.
Patrons of the AJC Board include:
The Hon. Tony Pagone AM KC, Victorian Bar, former Judge and Aged Care Royal Commissioner.
Dr Bryan Keon-Cohen AM KC, former Barrister and ACJ Founder.