As operators push deeper into aged care, every promise – from “ageing in place” to cyber safety – carries rising liability.

Only three in 10 Australians die in their retirement village, with most still ending up in residential aged care. For an industry that sells “ageing in place,” the gap between promise and delivery is no longer just a service issue – it’s a legal tripwire.

Once, village compliance meant making sure the pool fence met council code. Now it means proving medication charts were signed, cyber defences are watertight, and redevelopment agreements can withstand a resident challenge.

As more villages commit to delivering care, the legal landscape is shifting under their feet.

This was the theme that cut through at the recent Ask the Visionaries: Anything events hosted by DCM Group in Sydney, Melbourne and Brisbane. Industry leaders agreed: if operators are going to promise lifetime care, they must be ready to manage the liabilities that come with it.

The new duty of care

For Simon Miller, CEO of Anglicare (pictured top), the message is blunt: village operators can’t pretend they’re just in the property business anymore.

“The minute you introduce higher-acuity care, you import aged care law, workplace health and safety obligations, and a whole layer of liability,” Simon said. “Directors need to be across this. They can’t outsource the risk.”

That liability extends from the boardroom to the frontline. A mis-administered medication, a system outage, or a poorly worded brochure promising “care for life” could all end up in court.

The promise trap

Robin Lyons, Partner at law firm MinterEllison, says the legal stakes start with the promises operators make.

Under common law, a duty of care is about preventing foreseeable harm in established relationships – like doctor and patient or employer and employee. Retirement villages don’t fit neatly into that list, but the relationship and the marketing promises made to residents can create obligations.

“If you sell ageing in place, you may be held accountable if residents feel those promises weren’t delivered,” he underlined.

Once an operator becomes an approved aged care provider, those obligations harden into statutory duties: board members and executives are personally accountable, and responsibility extends to subcontracted providers.

Contracts now being tested

That makes promises a pressure point. Contracts advertising “lifetime care” or “never having to move” are already being tested against reality, especially as reforms to Support at Home and the Aged Care Act reshape funding and obligations. Changing service agreements midstream has become a minefield – and vague commitments can backfire.

Simon cautions: “If you sell certainty, you’d better have the workforce, systems and approvals to deliver it. Otherwise, you’re opening yourself up to challenge.”

Byron Cannon, CEO of LDK Seniors’ Living, agrees: “Duty of care can only be managed if boards and executives own the risk appetite and embed it into frameworks. Without strong governance, compliance and care promises become dangerous liabilities.”

Choosing the care pathway

For operators intent on stepping into care, there are three clear options:

• Become an approved provider, taking on the full overlay of aged care compliance.
• Employ their own staff under brokerage agreements with approved providers, retaining operational control but relying on a partner’s license.
• Outsource entirely, handing service delivery to an external home care provider.

From 1 November, new compliance categories will make the choice even starker. Obligations will scale up depending on the type of services offered – from basic personal care through to medication management and clinical oversight. Each step up the ladder brings higher risk, and a heavier governance load.

Technology as compliance armour

Caroline Lee, founder of enterprise care platform Leecare, says systems are no longer just operational tools – they’re legal insurance.

“Directors need governance structures and systems that can prove they’re meeting standards – in every assessment, every rostering decision, every medication round,” she said.

Leecare’s Platinum6 platform creates that audit trail automatically. Guided assessments ensure even new staff follow safe processes. Dashboards show which manager signed off, when. Automated reports reduce the risk of missed records.

In an environment where regulators and coroners increasingly ask for evidence, technology provides the defensible paper trail boards need.

Documenting every response

David Waldie, CEO of monitoring platform eevi, sees it the same way. His system combines resident call data, sensors and clinical notes into one feed – all time-stamped, all logged.

“The data is now available, and the systems are there to let you rely on it for care delivery,” David said. “Whether it’s flagging agitation, guiding medication with GPs, or keeping families informed, everything is captured.”

For carers, it means less noise: eevi filters alerts to prevent fatigue, so only critical events demand attention. For boards, it means every response is documented, creating a defence if incidents are ever tested.

The cyber threat

But technology brings its own risks. With platforms now holding everything from health records to behavioural data, cybersecurity has become a frontline legal issue.

Robin warns the sector is underestimating its exposure.

“The Privacy Act is being sharpened, penalties are rising, and a serious data breach will not only cost millions – it will cost reputations,” he said.

He pointed out that many villages still treat IT as a back-office function, when it should be embedded in clinical governance. Encryption, multi-factor authentication, staff training, regular audits – all are now baseline expectations.

For operators promising ageing in place, a cyber breach could be as damaging as a clinical incident.

Rethinking governance

Legal risk now runs through every layer of the private aged care model.

It marks a cultural shift as much as a legal one: moving from a “trust us” mentality to a “prove it” expectation.

Yet the rewards are tangible. Care integration is lifting valuations and sales prices for operators, while delivering better outcomes for residents.

Operators who succeed in this new environment will be those who treat compliance as strategy, not red tape – investing in systems that stand up in court as well as in care.

Because in the era of ageing in place, the question isn’t just: can you care? It’s: can you prove you did?