LASTING POWERS OF ATTORNEY
A Lasting Power of Attorney is completely different to a Will. A Will decides what happens to your estate when you die. A Lasting Power of Attorney appoints attorneys to make decisions about both your property and finances and your health and welfare, should you ever lose the mental capacity to make those decisions yourself.
No. Your Lasting Power of Attorney is only valid whilst you are alive. It ceases to have any effect once you die. Attorneys can only use a Lasting Power of Attorney to deal with financial transactions on your behalf or make decisions about your personal welfare (including Life Sustaining Treatment, if you permit them to do so) if you lose the mental capacity to deal with those issues yourself. They are bound by certain duties under the Mental Capacity Act and must take into account your wishes and feelings and above all, act in your best interests.
Yes. You can include in your Lasting Power of Attorney clear instructions about how you want your Attorney to act. You can also include preferences about how you would like them to act for you, which they should keep in mind. If you appoint more than one Attorney, you can specify in your Lasting Power of Attorney whether you wish for them to act together on all decisions or allow flexibility and act together or separately.
Then you may never need to you use your LPA. An LPA is like having an insurance policy – you may not need to use it, but you will be thankful that you have it. Should you not have an LPA in place and then lose mental capacity to be able to deal with your financial affairs or have to receive life-sustaining treatment, then those closest to you have no legal standing to be able to deal with your affairs. This would then involve a lengthy and expensive application to the Court of Protection to seek an Order to enable them to deal with your matters.
As you have no legal authority to deal with these matters, you will need to seek an Order permitting you to do so from the Court of Protection. This is called a Deputyship Order, which appoints you as the Deputy for the incapacitated person. Chilcotts Law specialise in these matters and can ensure that the complicated process it involves, runs as smoothly and swiftly as possible.
The Court requires that a Surety Bond is put in place to safeguard the assets of the incapacitated person (known as “P”). The Surety Bond is a guarantee to pay any financial losses suffered by ‘P’ arising from the Deputy’s failure to perform their duties as directed by the Court.
The Law requires all deputies to submit a yearly report. Deputies are required by the Court to keep accounts of financial dealings on behalf of “P” (e.g. bank statements, receipts, invoices, etc). Deputies should keep “P”’s money separate to their own to avoid confusion.
If you are their “Nearest Relative” under the provisions of the Mental Health Act, then you have a number of rights. These include the right to request their discharge from section, making an application to the Tribunal and the right to be consulted before an application for admission to hospital is made.
When someone has been detained in hospital they are usually entitled to receive aftercare in the community from the Local Authority (Social Services) or the NHS or a combination of the two, as long as there is a need for such aftercare and receiving that aftercare will prevent a deterioration in mental state and help them to remain well. At Chilcotts Law, we can assist you in obtaining the necessary aftercare and talk you through the process.
At Chilcotts Law we can talk you through the displacement process and help you to challenge this, if you feel that you should not be displaced. The Court will usually only displace a nearest relative if they have unreasonably objected to their relative being sectioned and the nearest relative is deemed an unsuitable person to act as such.
WILLS & ESTATE PLANNING
You will often see many advertisements by companies that will offer to “hide” or “give away” your assets to prevent you losing your home to pay for care home fees. Unfortunately, what they do not explain is that if you deliberately deprive yourself of your assets to pay for your care, the Local Authority can seek an order from the Court to undo that transaction. However, it is not a straightforward process and at Chilcotts Law we can advise you about estate planning and paying for care.
If you register a Health and Welfare Lasting Power of Attorney (LPA), this will give your Attorney the authority to make decisions about medical treatment on your behalf. However, your Lasting Power of Attorney will not conflict with any Advance Decision you make. An Advance Decision overrides a Lasting Power of Attorney except in specific cases where the Lasting Power of Attorney was drawn up after the Advance Decision and specifically gives the Attorney authority to override the Advance Decision.
In England and Wales you have the right to leave your estate to whomever you choose – and largely, the deceased’s wishes should be upheld. However, children who were deemed to be financially dependent on their parent prior to death may have a claim on your estate under the Inheritance (Provision for Family and Dependents) Act 1975.
COMMUNITY CARE LAW
There is now legislation in place which places a duty on the Local Authority to provide carers with services, facilities and resources to assist them and reduce the need for support. At Chilcotts Law we can go through your rights with you and explain in a clear and open way how you can get the relevant assessments and what duties the Local Authority are placed under to ensure that they carry out those assessments and provide you with the necessary services, facilities or resources. We can liaise on your behalf with the Local Authority to ensure that it complies with its duties and achieve the best possible outcome for you.
At Chilcotts Law we can explain your rights in this regard and look at the whole picture. There may be a number of remedies available here and we will go through this with you.
MENTAL CAPACITY / COURT OF PROTECTION
DOLS stands for Deprivation of Liberty Safeguards. This is a procedure used by care homes or hospitals to deprive someone of their liberty in order to give them treatment or care where that person lacks the capacity to consent to such decisions. The person deprived of their liberty must meet certain eligibility criteria in order for the DOLS to be put in place. The DOLS should only be used to protect that person from harm and only if there is no other less restrictive alternative to managing their care and treatment. If a person is deprived of their liberty without a DOLS, then their deprivation will be unlawful. Relatives should be given the opportunity to appeal the decision or challenge the DOLS through certain mechanisms. We can explain to you the DOLS procedure and your rights to challenge this should you feel that appropriate.
If your relative is deemed to lack the mental capacity to make this decision for themselves, then the Local Authority should obtain prior approval from the Court of Protection before removing someone from their own home and placing them into a care home. If they do not obtain the necessary order, then they will be unlawfully depriving that person of their liberty. Additionally, if there is a Power of Attorney for Personal Welfare (or Deputyship order) in place, then the Local Authority must consult with and obtain agreement from the Attorney (or Deputy). Should you require further information about the rights of a family member and any care and treatment they are or are not receiving, please contact our team to arrange an appointment.
Leases and tenancies
Normally a lease will prohibit sharing or subletting part, and even if it is permitted you will usually need your landlord’s consent to enter into a formal sublease. Breaching this lease covenant could enable your landlord to terminate your lease. We can check the provisions of your lease and advise you on this, and if you decide to go ahead we can deal with applying for the landlord’s consent, and draft the sublease for you.
Unless the lease contains an option for the tenant to break the lease early, you cannot give notice to end the lease before the expiry date as you are bound to observe the tenant obligations until that time. We can advise you on whether your lease contains a break option, and if so we can deal with serving the break notice on your behalf. If your lease does not permit this, we can look at other options that might be available to you such as lawfully assigning your lease to someone else.
The lease will set out whether it is the landlord or the tenant who is responsible for repairing and decorating the different parts of the building. If the tenant is in breach of her repairing and decorating obligations, your lease should set out the procedure for notifying her to carry out the necessary work. We can advise you on the steps you need to take to do this properly, and also on how to prevent losing your ability to forfeit (end) the lease should forfeiture become necessary if your tenant is in persistent breach.
If your lease is within the security of tenure provisions of the Landlord and Tenant Act 1954, the landlord is in most (but not all) circumstances obliged to offer you a renewal lease provided that you have not been in breach of your obligations and covenants under your current lease. We can help you establish whether or not you have security of tenure, and if so advise you on the correct procedure to follow if you wish your landlord to grant you a renewal lease.
When a lease ends, the tenant is responsible for leaving the premises in the state of repair set out in the lease. The Schedule of Dilapidations is a list of the things that the landlord says you need to do before your lease ends to put the premises into that state. Contact us for advice as soon as possible on the extent of your repairing obligations so that work you are required to do (and no more) can be established and dealt with, and dealt with in time. Delay could mean you have to make further payments to the landlord as compensation for loss of rental income if late works mean the premises cannot be re-let straight away.
Your lease will govern this. If your lease does contain provision for the rent to be reviewed, the landlord will be entitled to review the rent in accordance with those terms. We can advise you on what your lease says about rent review, and if a review is permitted we can advise you in tandem with your surveyor on how to achieve a review that is fair and proper.
A Grazing Licence may be the appropriate document but care must be taken if she is going to be using other facilities or if you intend that she will use that piece of land exclusively, as this may create a business tenancy. This could mean that you inadvertently grant her security of tenure and you will have effectively lost control of the land. Contact us for advice on the best way forward to achieve what you want while at the same time protecting your position.
Generally speaking, once you have entered into an option agreement with someone to buy your land, you are bound to sell it to them if and when they decide to exercise the option. As the option will be subject to the buyer obtaining planning permission, the option agreement should contain provisions enabling you to approve the planning application before it is submitted, but you would not be able to withhold approval for no good reason. We can advise you fully on this to help you make your decision, and if you decide to go ahead we can draft the Option to Purchase for you.
This depends on whether the seller has ‘opted to tax’ with regard to the property, or whether the property is less than three years old. Contact us for advice on this so that you can establish the position before committing yourself to the purchase.
Generally speaking you may not block a public right of way as it still exists in law even if it is not used. You may succeed in an application to divert it so it crosses your land somewhere more convenient for your purposes, but this is subject to other criteria being satisfied. We can advise you on how to make the application and the matters you will need to bear in mind.
Use Class A1 of the Town and Country Planning (Use Classes) Order includes both retail premises and sandwich bars (depending on the type of food sold and where it is to be consumed) and therefore you may be permitted to do so. We can advise you on whether or not your specific proposals would fall into this Use Class, and also check for you whether any current authorised planning use of your premises contains any restrictions or conditions over and above this that would prevent you from going ahead. You must of course also consider environmental health and food hygiene regulations and we can put you in touch with appropriate advisers should you wish.
HEALTH AND WELFARE ADVOCACY
Our in house specialist can represent you in such a dispute. Anne Reed has extensive experience in challenging NHS organisations which refuse to fund with specialist treatments or out of area treatment requests.
Please call Anne Reed on 01822 612535 for an initial chat to discuss how best to proceed.
You are entitled to see a copy of your medical records. Our in house expert can assist you in making an application for such records. Anne is an experienced clinician and can also advise you in regard to standards of care and treatment regimes. Anne has access to a number of other professionals who would also be able to provide a expert opinion in regards to treatments.
Please call Anne Reed on 01822 612535 for an initial discussion as to how to proceed in your given circumstances.
It can be very daunting when faced with professionals bringing pressure upon you to find a suitable placement and care package for your loved one. Our in house experts and in particular, our Anne Reed can assist and support you with preparing a safe discharge; preparing and attending meetings and assessments and locating a suitable residence to meet the person’s needs; this maybe in a residential setting or within the person’s home. Anne can arrange care assessments and care packages to be implemented no matter where you may be in the country.
Anne has an extensive knowledge and connections around the UK of specialist units should such services be required. Please contact Anne on 01822 612535 as to how she may be able to help you.
As well as Anne Reed being able to represent and attend funding assessments for Continuing Healthcare eligibility or Local Authority funding assessments – she can also provide advice as to how a person’s home can be preserved and protected against Local Authority funding decisions.
Please call Anne Reed on 01822 612535 for an initial discussion as to how to proceed in your given circumstances.
Social Care is provided through the Local Authority. Care can be provided in Care Homes and in Day Care Centers, as well as at Home with services such as Domiciliary Care and Meals on Wheels. This is ‘means tested’, so depending on your finances you may have to make a contribution or full payment for the care. A financial assessment carried out by the Social Services will determine this.
‘NHS Continuing Healthcare’ is provided by the NHS. If a patient’s primary care need is assessed as being healthcare then the whole of the cost of providing the patient’s care should be met by the CCG. Funding should be made available regardless of where the care is to be provided and can therefore include: a patient’s nursing home, or the patient’s own home. If the patient resides in a care home then the funding would also cover the cost of the accommodation fees.
‘Social care’ is provided by the Local Authority and is means tested. This means that the person requiring social care services will need to have a financial assessment carried out to assess their means. This falls under the parameters of the Care Act 2014. ‘Healthcare’ is provided by the NHS and is not means tested.
The Primary Health Need is assessed by looking at all of your care needs and relating them to four characteristics:
The type of condition or treatment required and its quality and quantity
Symptoms that interact making them difficult to manage or control
One or more needs which are so severe that they require regular interventions
Unexpected changes in condition that are difficult to manage and present a risk to you or to others
Multi Disciplinary Team (MDT) is two or more people from at least two different professions who are responsible for an individual’s care. Both health and social care should usually be represented. An MDT should be convened for a full continuing health care assessment using the decision support tool.
The Decision Support Tool contains 12 care domains which are categorised into grades of need ranging from ‘no needs’ to ‘priority’.
The ‘Checklist’ is the initial trigger assessment and is used to facilitate a full ‘Continuing Healthcare Assessment’ at which the ‘Decision Support Tool’ (DST) is completed.
From the point of requesting a Continuing Healthcare Assessment until the receipt of a decision as to eligibility or not, should be 28 days.
Patients and their families are entitled to be present at all stages involved in the Continuing Healthcare Assessment and should be invited to attend. Families may choose to have an advocate present at the assessment. The patient should also be given a consent form to sign for each individual part of the assessment process i.e. the ‘health needs assessment’, the ‘checklist’ or the ‘full assessment’ (using the “Decision Support Tool’ or ‘DST’).
Please speak with our in house Advocate, Anne Reed on 01822 612535 who is a dual qualified practitioner and will be able to represent you or your relative during this assessment process.
The patient and their families should be informed how the assessment process is applied and implemented and of the timescales in which they will be conducted.
Yes, the National Framework makes it very clear that the CCG must make the process ‘open and transparent’ and all documentation and assessments must be shared with patients upon request. The patient / family have an opportunity to write their views in the DST prior to it being taken to the panel for decision making.
The Care and Support (Discharge of Hospital Patients) Regulations 2014 place a legal requirement upon the CCG to carry out CHC assessments before a patient is discharged from hospital.
Patients may be awarded Continuing Healthcare funding in their own home, a residential or nursing home setting.
Continuing Healthcare funding is not dependent on the patient receiving ‘nursing care’ it is dependent upon the patient’s primary care need being ‘healthcare’. This is established through the assessment process.
‘Well managed needs’ still remain needs.
When a patient is awarded Continuing Healthcare funding, their package will be required to be managed, monitored and over-seen by a qualified nurse.
Following an award of Continuing Healthcare funding being made the patient will be reassessed after 3 months and from thereafter annually.
If the patient lacks mental capacity and has no family to represent them then the NHS/Local Authority should ensure that an Independent Mental Capacity Advocate (IMCA) is appointed to act on behalf and in the best interests of the patient.
Please speak with our advocate Anne Reed who will be able to assist and represent you on 01822 612535.
Relatives of a patient who lacks capacity may already hold an Enduring Power of Attorney/Lasting Power of Attorney for the patient; if they do not then they should seek legal advice to apply to become the patient’s Deputy through the Court of Protection.
Please contact us on 01822 612535 and speak with Rachael Hawes who will be able to assist you with this application.
Patients who are resident in a nursing home may qualify for ‘Funded Nursing Contribution’ which is sometimes referred to as ‘Registered Nursing Care Contribution’. The standard rate is currently £112.00 per week (April 15/16) this is not the same as Continuing Healthcare funding.
Attendance Allowance is a non-means tested benefit that can be claimed by persons who need help with personal care due to being physically or mentally disabled. You must be 65 or over to claim this. If under 65 you can claim Personal Independence Payment which is also non-means tested. If you are awarded Continuing Healthcare and wish to remain in your own home, your attendance allowance award continues. If you are awarded Continuing Healthcare funding and are transferred to a nursing home, the attendance ceases after 28 days.
If a patient has previously been assessed for Continuing Healthcare and has been deemed not eligible for funding, a request can be made for re-assessment at anytime if the patient’s condition changes.
Yes, a patient has a right of appeal to NHS England, for an Independent Review, and thereafter to the Ombudsman.
If you believe that you, or a relative, qualify for Continuing Healthcare but are not receiving it, we would be delighted to discuss this or any other issue concerning care.
Please contact Anne Reed on 01822 612535 who will be able to represent you at any level of the Appeals process.
A funding award is not dependent upon the locality but upon the health or social needs of the person. On occasions both NHS CCGs and Local Authorities will challenge who is responsible to pay the fees. This can become a ‘Responsible commissioner’ agreement and it is likely you will need specialist advice in order to challenge the decision.
Our in house specialist can represent you in such a dispute. Please call Anne Reed on 01822 612535 for an initial chat.