Recent trends in retirement village dispute resolution

The attendees at the quarterly Professional Development Day in Adelaide earlier this month were treated to a great presentation by Michael Spencer of O’Loughlins Lawyers.

Michael has been a litigation lawyer for over 20 years, and he regularly represents retirement village operators in the South Australian Civil and Administrative Tribunal. The Health, Aged Care and Retirement Living team at O’Loughlins Lawyers has been recognised this year by Best Lawyers as the Law Firm of the Year (for Australia) in Retirement Villages and Senior Living Law.

Michael explained that between 2019 and 2021, there was an increase by more than 50% in the requests made to the advocacy program of Aged Rights Advocacy Service (which is the SA member of the Older Persons Advocacy Network. O’Loughlins Lawyers have similarly experienced an increase in retirement village disputes coming to them in the past few years.

The reasons for this include:

• the transition to Baby Boomers as residents;
  
• increased awareness of rights;
  
• more residents with behavioural problems associated with cognitive decline and mental illness; and
  
• more children of residents being concerned about their inheritances.

While Michael talked through the relevant provisions of the South Australian legislation, and the general tactics that village managers might adopt in their management of disputes, the highlight of the presentation was his “war stories” from recent tribunal cases.

Those stories from recent South Australian cases where O’Loughlins Lawyers represented the operator included:

• The resident who was a hoarder, and it took three crime scene cleaners (yes, the people who clean up murder scenes!) three days to clean the resident’s apartment. The smell from the apartment had been wafting through the building, and maggots were crawling out under the front door to the distress of other residents and staff. The Tribunal made an order that the resident move out of the village.
  
• The resident who verbally and physically attacked (including with a frying pan!) other residents and their visitors. The evidence of the psychologist who had been brought in early to resolve disputes between this resident and other residents was key in the resident voluntarily leaving the village – before the Tribunal could order her out.
  
• The accountant daughter of a resident who disputed the calculation of her father’s exit entitlement. The Tribunal sided with the operator, notwithstanding the daughter producing legal advice from three different law firms supporting her interpretation of the residence contract.
  
• The resident who sought compensation associated with moving out of his village because the operator had not taken sufficient action against a second resident who had been behaving badly. The Tribunal decided that the operator had not been obliged to bring a case to the tribunal against the second resident, and thus dismissed the first resident’s case.