Thinking | 16 November 2016
Beware residents bearing gifts: where is the line for aged care providers?
Laws for aged care workers receiving gifts from residents are not clear cut, and a recent incident shows aged care providers need to think hard about what is acceptable.
Aged care workers often develop close relationships with the residents in their care. Yet as these relationships develop comes the potential for aged care workers to take advantage, or be perceived as taking advantage, of residents. Gift-giving is one area where the lines are blurred but the legal and reputational risks are very real.
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 gifts, such as property or money, can potentially become blurred.
This issue was brought to the fore recently when a Melbourne nurse was named the sole beneficiary to 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 just weeks prior to his death. The Will had been witnessed by two of the nurse’s co-workers, and it contained unsteady handwriting, spelling errors and mistakes.
The investigation into this case is pending and highlights the vulnerability of aged care residents and the potential for them to be the subject of undue influence.
We see other issues around gift giving: one practice involves visitors, often relatives or friends, offering gifts (monetary or otherwise) to aged care workers in an attempt to ‘buy’ a higher quality of care for the resident they are visiting. This creates ethical difficulties for everyone, from management to carers to the residents themselves. This practice has the potential to become an expectation on the aged care workers and could result in detrimental treatment if the gifts don’t keep coming. There may also be an indirect effect on other residents whose visitors are not ‘buying’ higher quality care, resulting in them being neglected and receiving a lower quality of care.
Some, but not sufficient, legislative controls
Restrictions prohibiting care workers, and health and accommodation providers, being named as attorneys in financial matters involving people under their care were introduced in Victoria in 2015. Similar provisions also exist in Queensland, but not in other States or Territories. There are however no equivalent restrictions preventing care workers and health and accommodation providers being named as executors or receiving benefits under a resident’s Will.
It is also difficult to prove allegations of undue influence or unconscionable conduct over a Will’s execution, and only a handful of cases have ever succeeded on these grounds.
Aside from the potential harm to residents, friends and relatives, these incidents may cause serious damage to a provider’s reputation even if there has been no undue influence or unconscionable conduct.
What can aged care providers do?
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 around when, or even if, aged care workers can accept gifts from residents. For example, these policies and procedures may require that all gifts are disclosed to management, regardless of value and that gifts over a certain value simply cannot be accepted including situations where they are gifted under a Will.
Aged care providers may also consider banning aged care workers from 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 relatives who can act in this capacity.
With comprehensive policies and procedures in place, aged care providers will have a proper basis for taking disciplinary action against employees who accept certain gifts, or who breach policies and procedures. This may include terminating employment.
While potential disciplinary action may be a sufficient deterrent for gifts of nominal value, this may not be the case where there is the potential for an aged care worker to receive a large gift of money and/or property under a resident’s Will; an aged care worker may choose to act in breach of the policies and procedures and simply resign from their employment if faced with disciplinary action.
To counter this issue, aged care providers should be proactive in educating relatives and friends of residents on the need to have those sometimes difficult discussions around their Will.
If an aged care provider suspects that an impropriety has taken place, it should consider making enquiries itself or conducting an investigation.
- Gifts of a nominal value and given with good intentions do not generally pose a problem for aged care providers.
- Even in circumstances where there was no undue influence or unconscionable conduct involved in creating a Will, it is easy for relatives or friends to make such allegations and the media to pick up the story, causing serious damage to an aged care provider’s reputation.
- Policies and procedures should be in place to ensure that aged care workers understand what gifts they can and cannot accept (including gifts under a Will), whether gifts have to be declared to management and whether they can act as executors of a resident’s Will.
- Aged care providers should educate relatives and friends on the need to have a conversation with residents about their Will.
- Where there are suspicions of impropriety, it may be appropriate for an aged care provider to make enquiries itself or conduct an investigation.
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