With an increasing number of retirement village residents living with some form of cognitive impairment – and few avenues for operators to move them to higher-level care – how can village operators protect themselves and their communities?

With an average age of 81, the chances are that many of the residents in your retirement village are living with dementia – and this poses a growing area of risk for both operators and residents.

James Wiltshire, the Executive Director of the DCM Institute – which provides professional development for Village Managers and head office staff – says that residents living in the village without a dementia diagnosis are now one of the key issues facing Village Managers.

“Outside of budgets and disputes, how do we manage the care needs of residents, specifically those without a diagnosis of dementia, is now the most discussed topic by Village Managers around the country,” he said.

Families are often in denial that there is anything wrong with Mum or Dad as they only visit on the weekend or see them at lunch when they are at their most active.

And unless they have been granted an Enduring Power of Attorney, the reality is that Village Managers are often powerless to help residents get a diagnosis.

If the Manager has a good relationship with the person’s GP, they may be able to raise their concerns in passing, but the resident still needs to make an appointment with their doctor and the GP can arrange an assessment of their cognition.

The village operator is also powerless to force residents to leave the village under the legislation.

Village contract clauses giving operators a right to require residents to move to residential care are “unenforceable”

In recent years, some village operators have inserted provisions into their contracts that if a resident’s health or cognition declines to a point that they can no longer live safely in the village and they refuse to leave, the operator can take the resident to the tribunal seeking to terminate for breach of contract.

But these provisions are likely to be unenforceable, according to Robin Lyons, Partner at law firm MinterEllison and the leader of its national retirement villages practice – and the tribunal is typically reluctant to terminate a resident’s right to live in the village.

“This is their home,” he said. “So, they are dealing with the fundamental right of a resident to live on their home, and tribunals are very disinclined to terminate a right to reside except in the most extreme circumstances.”

It can also take many weeks to secure a hearing – which is too late to deal with an urgent situation where a resident needs to be moved to residential aged care.

There are provisions in some Retirement Village Acts giving operators rights to terminate a contract based on a resident’s care needs.

In the Queensland Act, for example, there is a provision that if an ACAT team who has assessed a resident's care needs reasonably believes the resident’s type of accommodation is now unsuitable for them, the operator can terminate their contract on two months’ notice.

But the provision doesn’t compel the resident to agree to an assessment – which they would be unlikely to do.

In short, the Act does not provide a solution to this situation.

Villages marketing themselves as ‘care’ providers’

This issue is also becoming increasingly thorny given many village operators are now marketing themselves as providing a continuum of care.

“Operators are now blurring the lines between independent living and care and making representations about people being able to stay in the village and receive care services,” explained Robin.

“So, that is diminishing the ability of operators to argue that the resident's care needs render them no longer suitable to live in the village because of their inability to live independently.”

There is also the responsibility to protect residents and staff from psychosocial hazards.

“The key message if you’re taking this on, is that you will have a significantly increased legal duty of care to not just the resident with cognitive impairment, but the other residents in the village and to your staff,” said Robin.

“I urge the State Governments that are regulating the retirement village sector to turn their mind to giving operators more assistance in this situation for the sake of both residents and staff, because ideally, there needs to be a much quicker and more effective legislative avenue for dealing with serious cases of cognitively impaired residents living in retirement villages.”

Is there a happy ending to this story?

Perhaps not yet – but there are some positives.

Many retirement village operators and Village Managers are working to better prepare themselves to help residents who do need a dementia diagnosis.

Village operator Keyton has formed a partnership with dementia advocacy peak body Dementia Australia that has seen a majority of its village staff from the executive leadership team down complete training with Dementia Australia, and education also be rolled out to its residents.

The DCM Institute has also been working with Dementia Australia to educate the 500-plus Village Managers in its program on issues around dementia and retirement living.

There are also some exciting opportunities for village operators to partner with other providers to deliver alternative accommodation for their residents who are living with dementia.

Dementia disrupter Group Homes Australia (GHA) is looking to partner with retirement villages to build its innovative group homes on site.

The homes, which see six to 10 residents live together in a typical suburban style home with support staff known as Homemakers, would offer villages a continuum of care for residents living with dementia as well as a respite option.

Hear from Group Homes Australia Founder and Executive Director Tamar Krebs at the Leaders Summit 2024:

Not For Profit community organisation Heathcote Dementia Alliance (HDA) is also developing hi-tech, small homes designed for people living with dementia that could conceivably be used in a village setting provided the space can be made available.

Could these options be a win-win for operators and residents alike?