Everything your solicitor should have

told you!

Liz Holdsworth

Consultant Solicitor

WACE MORGAN LLP

Action you should take!If you have one or more people you trust :-

• Complete a Finance and Property Lasting Power of Attorney (LPA)

• WHY?

• If you lose capacity to deal with your financial affairs in your lifetime

• Someone – probably your closest relative – will have to apply to the Court of Protection

• This means serious money, delay and distress

What else?• Complete a Health and Welfare Lasting

Power of Attorney (LPA)WHY?• If you lose capacity during your lifetime

there is no-one in place legally to make decisions for you about health or welfare

What kind of decisions are these?• Where you live, what medical examination

you consent to and even end of life decisions

• What if I don’t have a Health and Welfare LPA? Who makes decisions then?

• Either a medical or social care team who may never have met you

• An attorney under a registered Health and Welfare LPA is legally empowered to make all these decisions for you if you cannot

What else should I consider ?

• Preparation of a statement which outlines what you would want to happen in the future about where you would live etc

• An advance statement is vital IF you do not have a Health and Welfare LPA to enable medical or social care teams to take account of your wishes

• An Advance decision/living will • WHY?• To refuse life sustaining treatment in certain

circumstances

Is that all?• NO!• What about the way you jointly own your property?• There are two ways. In one, on the death of the first joint

owner, his or her share automatically passes to the survivor

• Isn’t this good?

• Not if the survivor is in a care home for many years and all the money is used up

• What can I do• It is simple to change to the second way so that you can

leave your half share either to the children or into a discretionary trust

Should I make a will?• Most people know that they should make a will or

review their existing will• Many don’t know all the reasons!• Everything left to a spouse may be used up in care

fees• Without a will your assets will pass to relatives in a

way you may not expect!• If you are not married your partner will receive

nothing unless you make a will or they make a claim• If you and your spouse die together your spouse’s

family may inherit everything and your family nothing

How else can a will be of benefit?

• To appoint who will administer the will• To make gifts of money and personal items to

friends and family including much loved grandchildren

• To leave money to important charities such as Age UK Shropshire Telford and the Wrekin!

• To direct what will happen if one of the beneficiaries dies before you

• To protect money for a sick spouse or disabled adult child

• To let your family know whether you would wish to be buried or cremated and all about the service

What if I need care in the future? Who will pay?

• Knowledge is power !• There are three main ways of paying for care• If you have a PRIMARY Health need ALL your care

will be funded FREE by the NHS• Is this anywhere ?• Yes! You remain a patient of the NHS whether you

are in hospital, a care home, or at home• You should have an assessment to see if your

needs qualify you for NHS Continuing healthcare funding to see if your nursing needs are more than incidental or ancillary to your need for accommodation

What other funding is free?• Intermediate care of up to six weeks free

should be available

• If you have been sectioned under section 3 of the Mental Health Act and continue to need care it should be free under section 117

• The Veterans agency can pay towards the cost of a care home to someone receiving the higher rate of war pension

If I don’t have a Primary health need what then?

• It is only if your nursing needs are INCIDENTAL or ANCILLARY to your need for accommodation that you should be means tested

• If you have over £23,250 in England or £22,500 in Wales you will pay for your own care

• Will I get any help?

• Yes

You will receive

• Attendance Allowance per week of

£73.50 higher rate or

£ 49.60 lower rate

• If you are in a nursing home the NHS funded nursing care contribution

In England £108.90

In Wales £120.55

What if I don’t have that much capital ?

• You will get some help from the Local Authority/Council

• Your income will go towards your fees though some will be disregarded and you must be left with money for your personal expenses. England £22.60 Wales £23

• The Council pay a “standard” amount – almost always less than the care home fees

• Your family will be asked to pay the difference the “third party top up”

Should they pay?

• Almost certainly not!• The Council are under a DUTY to pay the FULL

amount if you are in the most suitable care home which is meeting ALL your needs and there is nowhere cheaper which could do the same

• Does this just mean medical or personal care needs?

• No!• They can include social, psychological,

religious, cultural and/ethnic needs

What’s happening locally• The Local Government Ombudsman has responded to

several complaints, by making visits to Shropshire Council which, in the experience of Wace Morgan, has unlawfully been asking families for a contribution to their loved ones/s care

• In many cases these “contributions” are very significant

• The LGO has recommended to Shropshire Council that it should be checking all care home residents to see whether a third party top up has been asked for unlawfully

• All care homes should have been asked to put up a notice to that effect

Is my house part of the means test?

• Not necessarily!• It will not be taken into account if• Your placement is temporary• It is the family home and your spouse or partner lives

there• A specific relative of yours or a family member( from

a specified list) lives there who is

over 60, a child under 16 you are liable to maintain or incapacitated

• There is a discretion to disregard the value of the property in certain circumstances

An Example

• Mr and Mrs Campling live in a manor house worth 2 million with £100,000 of antiques

• Mrs Campling has £100,000 in savings• Mr Campling has £10,000 and his state pension• He goes into a residential home most suited to his needs• The council will pay but only up to a certain amount.

They ask Mrs Campling for a top up• After advice she refuses and the council fund the full

amount as Mr C is in the most appropriate place to meet all his care needs and there is nowhere cheaper

• He uses his state pension but keeps £21.90 for personal expenses

What about care at home ?• Sec 47(1) of the National Health and Community

Care Act 1990 imposes a duty on Local Authorities to carry out an assessment of anyone who MAY be in need of community care services

• The personal finances are irrelevant – the assessment is free!

• There is a difference between presenting needs and eligible needs ( those which fall within the LA’s eligibility criteria)

• Only those whose needs are in the critical or substantial bands will receive help from the LA

• Locally the telephone number to contact is 0345 6789044

What next ?• There will be a financial assessment of the

cared for person

• Until recently the council when undertaking a financial assessment were taking in to account the savings of the spouse

• This is wrong!

• It is against Government guidance under the “Fairer charging policy”

• Wace Morgan made many representations and have been told that the policy has been changed

What’s important to know

• Always ask for the legal authority which the person is using to assess you or your loved ones

• Always ask for the LA’s policy. There should be a document available

• Disability related expenditure should be taken into account

• Never be rushed into anything!

Is there more information available?

• Yes!• “Who cares who pays Funding of Long Term

care and related legal issues”• Information on LPAs and Advance decisions• “What is a Health and Welfare LPA?”• “Who should fund long term care- should it be

the NHS?”• “Is your relation about to enter a care home?

Should you pay the Third party top up?”