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NSW Concerns with Aged Care Contract?

Discussion in 'Debt and Bankruptcy Law Forum' started by GC., 11 August 2016.

  1. GC.

    GC. Active Member

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    My mother-in-law has recently been admitted permanently into a nursing home. We have just received the contract and I am not sure if the guarantor part is an issue (she is currently considered a temporary "respite" patient until the contract is signed).

    The contract says "We require you to nominate the Guarantor who must freely agree to enter into the Guarantee". My wife would end up being the guarantor.

    The guarantee attached to the contract has nothing in it to limit our liability, and there are two specific areas where this concerns me.

    1) There is no requirement for the provider to limit our liability for unpaid fees or notify us that our liability is accruing, and indeed the contract seems to specifically allow them to continue running up the bill, it says "You acknowledge and agree that the costs of accommodation and the care services may accrue over time" (this is in the section relation to placing a caveat over the resident's property - she owns a property that would probably only fetch $5k or so, and take a long time to find a buyer).

    There is no provision for us to get out of this if circumstances change (for example if my wife's power of attorney is revoked).

    2) There is a clause saying that the resident must return the property in "its original state ... at your expense". I am concerned that this may allow the facility's insurance company to come after us for the full cost of damages (not just the excess) should an accident happen (eg, she accidentally sets fire to the place - she is a smoker with dementia).

    We spend lots of money on insurance for our own home to protect us against this risk, and I am concerned that we are accepting the full liability for something that we won't be able to insure against.

    Are my concerns here valid? We are quite happy to accept a limited liability as a guarantor, and her likely debt is manageable (under $700 per fortnight in fees) but I don't want to accept an ongoing unlimited liability that may not be in our control and that they have specifically said could be allowed to accrue. I would think that, say, limiting the guarantee to two months worth of fees would be ample to give them time to raise and resolve any issues (we would agree to quite a bit more to sort this out, but having no limit concerns me)

    And how negotiable are these contracts normally? My wife is concerned that if we raise an issue then her mother may lose her place.

    They are pressuring us to sign today, we are stalling them until tomorrow (the start date on the contract is 11/8/2016 - we received it yesterday by express post), so a quick response would be greatly appreciated.

    Or would it be OK to get my mother-in-law to sign the contract and then attempt to renegotiate the guarantee when they ask us to sign it?

    Or is this an occasion where I need to engage a lawyer? (I thought an aged care contract should be simple)


    Thank you
     
  2. GC.

    GC. Active Member

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    I should also mention that while the contract includes a copy of the guarantee in the schedules, they are not asking for it to be signed at this stage. The "sign here" stickers are only on the execution page of the contract. I would guess that they would send a copy of the guarantee to my wife after they have received the signed contract.
     
  3. Mary W

    Mary W Well-Known Member

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    Welcome to the delightful world of aged care.

    I would not be signing anything without knowing what you are agreeing to, and certainly, don't sign in the hope of renegotiating. Do not let them rush you because your mother is probably entitled to something like 63 days in respite.

    If you ask me anytime a family member goes into aged care you need legal advice and financial advice because negotiating these issues can be a nightmare eg getting your head around the 3 levels of fees for a start.

    Have you tried speaking to the CEO of the nursing home, or looking on the myGov or myagedcare sites?

    Are you also aware of the large Centrelink document that must be completed?

    Is your mother in law capable of signing or is your wife going to?

    If you are really not happy, I would be taking the document to a solicitor so you know exactly what this is about.

    Again, do not let them rush you.
     
  4. GC.

    GC. Active Member

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    Mary, thank you for your response, however, I was unable to restrain my wife and the contract is now signed. It was signed by my mother-in-law (my wife signed as the witness to the signature).

    She has been very stressed throughout this whole thing. When we were trying to find a placement she was so bad that she was unable to drive (she wasn't able to concentrate enough on the road to avoid accidents - we managed to narrowly avoid the accident, but that was due to my actions from the passenger seat). She also broke down in tears while driving and had to stop in the middle of the road for a while. She was in tears again yesterday concerned that her mother would lose her spot and we would have to go through it all again (worse this time, because of stuffing her mother around rather than a simple transfer to be near us after being in the hospital). She was under the impression that it *had* to be signed yesterday, so that's what she did.

    We did not speak to anyone at the nursing home about the contract. My wife said that it's a standard contract that everyone signs and that they wouldn't want to change it. She didn't want to rock the boat and risk losing the place, and wouldn't allow me to attempt to negotiate. Regarding those two government websites, we did use them to find the place but ended up only finding one suitable spot that was available (which is the one she is in now).

    Regarding the fees and the Centrelink form. We filled in the form and sent it off to Centrelink and they responded with an income assessment that said that she was entitled to the full concession (assets less than $45k). We sent this to the nursing home and about a week and a half later they sent us the contract via express post (we had no forewarning on the terms of the contract prior to this).

    Note that we have not signed the guarantee, just the contract. The contract doesn't seem to specify any criteria as to who can be the guarantor so maybe I could limit our liability by getting my son to sign it (he has zero income as he is in primary school) as it technically meets the requirements of the contract.
     

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