It is perhaps a natural consequence of the role that aged care workers often develop close relationships with the residents in their care. However, with the development of those relationships comes the potential for aged care workers to take advantage, or be perceived as taking advantage, of residents.
The Australian Nurses Code of Conduct permits nurses to accept nominal gifts. However, without proper definition (and control), the line between a nominal gift (such as chocolates) and more valuable bequests of property or money can potentially become blurred.
This issue was brought to the fore recently when a Melbourne nurse was named as the sole beneficiary of the estate of a resident under her care. The resident had no close family connections and was admitted to the aged care facility in mid-2015. The resident passed away in August 2015 leaving his $900,000 estate, $36,000 in cash and all his remaining possessions to the nurse. Upon the grant of probate, the resident’s aggrieved neighbours queried the validity of the new will created by the resident weeks prior to his death. The will had been witnessed by two of the nurse’s co-workers and contained unsteady handwriting, spelling errors and mistakes.
Although the investigation is pending, the above circumstances highlight the vulnerability of aged care residents and the potential for them to be the subject of undue influence.
Some, but not sufficient, legislative controls
Restrictions were introduced in Victoria in 2015 under new laws dealing with powers of attorney. The restrictions prohibit care workers and health and accommodation providers being named as attorneys in financial matters involving people under their care. However, there are no equivalent restrictions in relation to wills that prevent care workers and health and accommodation providers being named as executors or receiving benefits under a resident’s will. Further, in cases where there is an allegation of undue influence or unconscionable conduct in relation to the execution of a will (which would make the will invalid), proving that allegation is very difficult, with only a handful of cases ever having succeeded on these grounds.
Aside from the potential harm to residents (as well as their friends and family), incidents such as the above have the potential to cause serious damage to a provider’s reputation, even if there has been no undue influence or impropriety.
Given all of the risks and the lack of comprehensive legislative controls, it is prudent for aged care providers to have clear policies and procedures in place in relation to when, or even if, aged care workers can accept gifts from residents. These policies and procedures may require, for example, that all gifts are disclosed to management, regardless of value, and that gifts over a certain value simply cannot be accepted (including when they are gifted under a will). Aged care providers may also consider placing a ban on nurses and other care providers acting as executors of a resident’s will, and establish procedures for referring residents to independent third parties in circumstances where they have no friends or family who can act in this capacity.
This article was written with the assistance of Alexandra Lane, Law Graduate.