Help – I can no longer afford to pay my care fees

The inability to afford care fees is a big dilemma which care home residents and their family members face.  If the money that has been used to pay for long-term care is running out, there are several options that need to be considered including whether you can turn to anyone for financial support to fund the cost of on-going care.  At present a person should be entitled to financial support from their local authority for care, once their capital falls below £23,250.

Care Needs Assessment

You should arrange a care needs assessment with the relevant local authority.  The assessment will consider your current care needs and what care will be required in the future.

Financial Assessment

If the care needs assessment indicates that you are entitled to support, you will need to arrange for a financial assessment to be undertaken.  The relevant local authority will require a detailed form to be completed to consider your income, savings, assets and eligibility for funding.  Depending on the outcome of the financial assessment, you might still need to pay a contribution towards your care.

Can you remain in the care home?

This is a common question that is raised by the family.  As you may no longer have sufficient funds to pay for the care, this does not automatically mean you will have to move into a different care home.  It is important to consider the contract that has been signed with the care home or provider which should detail the procedure adopted by the particular care home in detail.  Some care providers will allow you to stay at the care home while you are applying for funding.  In certain circumstances the care home may also accept a lower weekly cost of care rate from the local authority so that you will not have to move and can continue to have the benefit of continuity of care.

Should you require assistance on this specific issue please contact the Court of Protection team at Anthony Gold.

‘Claudia’s Law’ and the Court of Protection – helping relatives of missing people to safeguard their financial affairs

The story began on 18 March 2009, when 35-year-old Claudia Lawrence was last seen returning home from her shift as a chef at the University of York.  An alarm was raised the following morning, when Claudia failed to turn up at work.  An investigation into her disappearance and suspected murder was launched but despite six arrests, no charges were brought against anyone.

Claudia’s disappearance plunged her family into a state of despair.  Not only have they had to deal with the devastation of not knowing what happened to Claudia, but they have also had the additional stress of struggling to deal with and safeguard Claudia’s financial affairs during the period of her disappearance.  Under current legislation, the Presumption of Death Act 2013, families of missing persons are required to wait 7 years before they can apply for a ‘Declaration of Presumed Dead’, which would allow them to apply for a certificate to deal with their loved one’s financial affairs.  Claudia’s family strongly criticised the legislation in force as Claudia’s property and affairs were effectively ownerless and the 7-year wait brought about additional anxiety to the family as they struggled to manage Claudia’s financial matters.  The legislation would have also precluded the family from applying for a Grant of Probate, should she be deemed presumed dead, which can usually only be obtained following the presentation of a death certificate.

Approximately 250,000 people go missing every year in the UK and the Government recognised that Claudia’s family were not an isolated case. This, combined with the Lawrence family’s campaign for new legislation, gave rise to the Guardianship (Missing Persons) Act 2017 (“the Act”), which on 27 April 2017 received Royal Assent.

This new legislation, which is believed to come into force this year, enables the Court to appoint a Guardian to act for a missing person after they have been confirmed missing for more than 90 days.  Section 1 of the Act defines “missing persons” widely, as people who are absent from their usual place of residence and usual day-to-day activities and their whereabouts are not known at all or are not known with sufficient precision to enable the person to be contacted for the purposes of decisions relating to his or her property and financial affairs.

The appointment will last for up to four years but can be extended upon expiry.  Pursuant to section 6(4) of the Act, the rights and powers that a Guardian may be appointed to exercise include selling, letting or mortgaging the missing person’s property, making investments, executing deeds, recovering money owed to the missing person, discharging debs, bringing or conducting legal proceedings and making gifts.  Former Justice Minister, Lord Faulks has been quoted as saying that “when someone suddenly disappears, their affairs can be thrown into disarray, adding to the distress and emotional heartbreak experienced by family members…. these measures will give legal powers to families, allowing them to take charge of their missing family member’s property and financial affairs”.  The new legislation is a welcome development helping to fill the current void that exists with property and affairs management for missing persons.

As with the powers provided to Property and Affairs Deputies acting on behalf of people lacking mental capacity, the Missing Person’s Guardian will be entitled to be reimbursed from the missing person’s assets for reasonable expenses incurred in connection with the exercise of their Guardianship functions. A guardian will also have to act in what he or she reasonably believes to be the missing person’s best interests.

It is not known at the present time which Court will have jurisdiction to hear applications for Missing Persons Guardianship once the Act comes into force, but the rumour has it that the Court of Protection may well be tasked with this.

I guess we shall wait and see.

The duty to notify the Office of the Public Guardian on death of a Deputy and/or Protected Party

The Office of the Public Guardian (“the OPG”) provides protection to individuals in England and Wales who may not have the mental capacity to make certain decisions for themselves.

One of the OPG’s responsibilities is to maintain an accurate register of Deputies appointed by the Court of Protection, either in a Property and Affairs or Welfare capacity.  That is partly to ensure that the OPG can meet its supervisory function and reporting requirements to the Court of Protection and to ensure that their data is accurate.  A list of Protected Persons and Attorney’s acting under a registered Power of Attorney are also retained by the OPG, as is a record of any dismissals, revocations, deaths or changes under any of those powers.

To help ensure that the OPG can actively manage their internal records, there is a duty to notify the OPG on the death of the following people: –

  1. Donor of a registered Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA);
  2. Attorney acting under a registered EPA or LPA;
  3. Replacement Attorney under an EPA or LPA;
  4. Deputy appointed by the Court of Protection;
  5. Death of the Protection Party subject to a Deputyship order.

You must notify the OPG as soon as possible on the death of a Deputy or a Protected Party.  This should be done formally, in writing, quoting the case reference number, full name, date of birth and the last known address of the deceased person.  In addition, one must supply the OPG with formal confirmation of the death which can be any document from the list below:

  • A completed solicitor’s death verification form;
  • A copy of a letter from someone able to confirm the date of death (non-exhaustive list) such as:
    • A solicitor, barrister or advocate authorised to practice in the country where the declaration is made;
    • A legal executive who is a member of the Institute of Legal Executives;
    • A Will writer who is a member of either: the Society of Will writers or the European Association of Will writers;
    • A doctor or surgeon registered in the country where the declaration is made;
    • A notary public or any person allowed to administer oaths in the country where the declaration is made;
    • A magistrate;
    • A chartered accountant;
    • A funeral director;
    • An officer of a bank;
    • An officer of the DWP responsible for administering benefits;
    • A social worker registered to practice in the country where the declaration is made;
    • A local government officer responsible for administering benefits or council tax;
    • A care home manager or owner;
    • A consular or embassy official, if the person died abroad;
    • A Local Authority Holder of the Office of Deputyship Officer.
  • A certified certificate issued by the Registrar General, a Superintendent Registrar or a Registrar of Births and Deaths;
  • The equivalent of a (copy) certificate issued abroad by the appropriate registration authority if the person died abroad.

On the death of a Deputy, the OPG’s supervisory jurisdiction will end, unless the Deputy was jointly and severally appointed with another individual, where the OPG remains involved and its functions will continue and extend until such time as the Court appoints a replacement Deputy.

The OPG will usually request that a final financial report be submitted by the Deputy’s personal representatives to account for expenditure, transactions and decision making up until the time of death.

On the death of a Protected Party, the Deputyship comes to an end, however the OPG will still request a final account up until the date of death, before estate administration matters are considered.

For further information about of the processes followed by the OPG when a death is reported, there is a useful Public Guardian Practice Note which can be accessed here.

Will my relative’s home be taken into account when assessing what contribution they should make towards their care fees?

When our clients move from their own homes into residential care homes or nursing homes, the question of funding this care comes into consideration. Some of our clients have enough capital, in savings and assets such as property, to fund the cost of their care institutions. However, should our clients not be able to pay their care fees, the local authorities may assist.

The Charging for Residential Accommodation Guide s (6) sets out the rules regarding social services contribution. As such, a person whose capital is over £23,250 will not be eligible for financial assistance, and they will have to fund their own care. If the person’s capital falls between £14,250 and £23,250 then they will have to contribute to the cost of their care on a tariff based system. And finally, should the person’s capital fall below the £14,250 threshold, the local authority will fund the care in its entirety, subject to any contribution from income.

Normally, capital would include property. Unsurprisingly, considering the average value of a house in the United Kingdom is now worth around £225,956, many find themselves paying for care from the sale proceeds of their home. However, there are instances in which a person’s property can be disregarded from the financial assessment process.

Property disregard happens for several reasons. The authorities recognise that many properties are held by the people going into care are not inhabited by them alone and a sale or renting of such property could cause distress to family members. The situations in which the value of properties held in a person’s name are disregarded are detailed in the CRAG and the subsequent Care & Support Statutory Guidance.

The main exception is set out in CRAG s7. This section reads that if the property has been occupied, in part or in whole, by relatives – a spouse, or a lone parent who is an estranged or a divorced partner, a relative over 60, or a child under 18, or a disabled relative (who could be under 60) – before the person’s move to a care home, the property should be disregarded.

Another exception is that the value of the home must be disregarded for the first 12 weeks of any admission to permanent care (CRAG s 7 (6)). Similarly, if the person’s stay in a care home is temporary, which means up to a year, and they intend to return to the property, the home will also be disregarded.

Controversy has arisen regarding people who lived with their parents before their move into care, but have subsequently left home for work or other reasons and have rented out, but intended to return to the home permanently. The question is whether the relative ‘occupies’ the property or is only emotionally attached to it. Should the property be disregarded in this instance?

The courts have decided that property may be regarded in this instance too. While each case depends on the circumstances, a case in 2014 found that a relative who had lived at the property before the protected person was moved into care, and who showed a clear intention to returning by keeping close ties to “home” (such as being registered to vote there, or registered with a local doctor), will be regarded as occupying the property, and hence this property will be disregarded from a financial assessment.

However, there are cases in which a relative moves in close to, or after the time when the protected person was moved into care in an attempt to prevent the property from being sold, after inclusion in a local authority financial assessment. In this event, the property will still be taken into consideration.

The Charging for Residential Accommodation Guidance and the Care & Support Statutory Guidance provides helpful information regarding social services financial assessments. However, should you be unsure about such assessments and whether your property will be taken into consideration when requesting a financial assessment, our solicitors Court of Protection solicitors are available for advice.

Regaining capacity

There is a presumption, as set out in section 1(2) of the Mental Capacity Act 2005, that a person does have capacity.  Where that has been displaced, to regain decision making powers an order of the Court of Protection is normally required.

In the case of MB v Surrey County Council [2007] EWCOP 25B27 a person made an application challenging a standard authorisation made under the deprivation of liberty safeguards.  The application was made to the Court of Protection through his representative, that he be allowed to leave care and move to independent accommodation.  This was a second application in that an earlier application in 2014 had failed, owing to the judge saying that there was a “huge risk” in such a move.  The protected party had autism and complex severe epilepsy. If unattended his epilepsy could be life endangering, hence he was held in a residential care home.

It is possible to make multiple applications, normally on the basis that a person’s condition can changes over time. However, here the protected party’s condition seemed stable. Despite that, in the second application the jointly instructed expert reported that he did have a capacity to make decisions as to his residence and care.

The Local Authority objected and unusually, the Court of Protection allowed the second expert, as there were “very significant issues at stake”.  The local authority took a view that the protected party would make potentially harmful decisions that might put his health at risk.

The second expert also agreed that he had capacity, however that capacity “could fluctuate during times … when his anxiety rose and he became distressed because of environmental triggers”.

Where a person has fluctuating capacity, the Courts may allow an order to made, however much depends on the support available and the likely length of intermittent incapacity. There is no guidance in the MCA on where the line should be drawn in complex cases such as this. The Deprivation of Liberty Code of Practice at para 8.22 does indicate that an authority should remain in place were the periods of capacity are limited. However, there is no statutory footing for this. Unsurprisingly the Law Commission is looking to put forward legislation to address this issue.

In this case, we are not aware as to what happened once the Court withdrew the authorisation. The local authority would have had no right to retain him within residential care and he could walk out whenever he chose.  He may have made an unwise choice, however, in practice one would hope that the local authority would have been involved in setting up an alternative care plan, despite their concerns as to the inadequacy and risks of the same.

Adapting a Property for P – Disabled Facilities Grants

We frequently assist with the purchase and adaption of properties for disabled clients.  This usually occurs after the settlement of a litigation claim for damages, where the injured party, often with support from their Deputy, will consider buying a suitable property for P to meet their long terms needs.  Before commencing the search for a suitable property, the Deputy might consider any accommodation expert’s report prepared in the claim, the wider costs of the purchase, budgeting and affordability and the practicalities of a move.

Many of our clients have suffered long term cognitive and mobility impairments. As such, another crucial point to consider is whether the chosen property can be adapted to meet P’s needs and if so, what the costs of the adaptations works will be.  As part of that process, we have a duty to consider whether a Disabled Facilities Grant (DFG) will be available to fund part of the proposed works.

A DFG is a grant that you can receive from the Local Authority if you are disabled and need to make changes to your home to meet your needs. There is an eligibility test for funding, which includes means testing in most, but not all circumstances. DFG funding cannot be obtained retrospectively therefore it is important that the application is submitted to the relevant local authority before any building works commence.

The Local Authority will consider project drawings and costed quotes from contractors when considering the merits of the application. A DFG grant can cover various works, including assistance with resolving access problems such as widening doors, installing ramps and stair lifts. What the grant covers depends on the individual needs of the home owner and an architect and specialist housing OT should be able to highlight what the Local Authority funding officer should be considering. The maximum amount you can receive from a DFG is £30,000.00 in England. This may be paid in a lump sum or in instalments following an inspection of the works by the relevant DFG funding officer. Receiving the grant will not impact on means testing for state benefits.

The deputyship team at Anthony Gold work on many large scale and complex building projects and have successfully applied for DFG funding for the projects.

HMRC penalties for late TRS registration announced

Last year HMRC introduced the new Trust Registration Service (TRS). At that time HMRC set out that all trusts incurring a ‘relevant tax liability’ for the first time during the tax year 2016/2017 must be registered on the TRS by the 5 March 2018. Any trust already registered and incurring a tax liability in the year 2016/2017 had a registration deadline of the 31 January 2018.

Earlier this month, HMRC, for the first time, published details of the penalties which would be incurred for late registration.

The announcement was as follows:

‘On 8 December 2017, HMRC announced that while the 31 January 2018 deadline for making a Trust Registration Service (TRS) return would remain in place, we would not charge a penalty if trustees, or an agent acting on behalf of the trustee, failed to register their trust on the TRS before 31 January 2018 but no later than 5 March 2018.

HMRC will not automatically charge penalties for late TRS returns. Instead we will take a pragmatic and risk-based approach to charging penalties, particularly where it is clear that trustees or their agents have made every reasonable effort to meet their obligations under the regulations. We will also take into account that this is the first year in which trustees and agents have had to meet the registration obligations.

While our information suggests that most TRS returns have been filed, if you have not yet completed your TRS registration(s), you should do so as soon as possible.

 

When penalties can be issued

Penalties can be charged for administrative offences relating to a relevant requirement.

These are:

  • a requirement to register using the TRS by the due date of 31 January after the end of the tax year in which the trustees pay tax on trust assets or income and
  • a requirement to notify any change of information by the due date of 31 January after the end of the tax year in which the trustees pay tax on trust assets or income.

 

The administrative offences penalty

HMRC will charge a fixed penalty to reflect the period of delay:

  • Registration made up to three months from the due date – £100 penalty
  • Registration made three to six months after the due date – £200 penalty
  • Registration more than six months late – either 5% of the tax liability or £300 penalty, whichever is the greater sum.

There is currently no facility to notify HMRC of any change of information online and, as such, we will not charge penalties for a contravention of this requirement until the online function is available.

A penalty will not be payable if we are satisfied you took reasonable steps to comply with the regulations’.

 HMRC also has the power to apply a penalty for money laundering offences under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017/692.

These offences are more serious than administrative offences. HMRC will not bring these penalties in immediately. HMRC will consult on the structure of these penalties later this year, to ensure the penalty regime is fair and proportionate whilst cracking down on money laundering offences.’

Testing for Novichok – the Court of Protection intervenes

The case of the poisoning of Sergei and Yulia Skripal in March 2018 has had significant media attention. The domestic and international consequences following this attack have been widely reported in the media.

Sergei and Yulia Skripal (father and daughter) were poisoned in Salisbury with a chemical weapon that has been reported to be the Novichok nerve agent. Both remain in hospital under heavy sedation currently unable to provide consent to any treatment or medical procedures. It is likely that the poisoning will have caused long-term and extensive damage affecting their mental capacity.

An urgent application was made to the Court of Protection by the Secretary of State, for authority to collect fresh blood samples from Mr and Ms Skripal to enable further testing of the chemicals contained within their blood and to undertake in-depth analysis of the presence of the nerve agent.

The Secretary of State applied for welfare orders in respect of the victims and sought access to Mr and Ms Skripal’s medical records from the relevant NHS Trust to aid their investigations. Access to medical records was only required since the date of the nerve agent attack, historical records not being required. The matter was heard in private however it was recognised that the reasons underpinning the application were “unique” and of “the utmost gravity” hence the judgment was published in accordance with the relevant procedural rules.

Whilst the Judge was unable to ascertain Mr and Ms Skripal’s past or present wishes or feelings to consent to the proposed procedures and the disclosure of the medical records, it was deemed reasonable to approach the decision on the basis of how “a reasonable citizen would approach matters” having been “subjected to an attack of any sort”.

It was stated by the Judge that most reasonable citizens would wish to understand what had happened to them following such an attack and that most citizens would wish to discover how a crime had been committed. There would most probably be a strong feeling of wanting justice to be done which would very likely extend to cooperating with investigations, such as the provision of blood samples and the release of medical records.

Further, obtaining the blood samples was in general terms a routine mater and not deemed to be harmful to Mr and Ms Skripal in any way, nor would it likely affect their respective clinical conditions. Whilst the procedures would have very little impact on their conditions, the benefit of investigating the toxins from blood samples taken from living individuals would provide far more in the way of investigative evidence to consider any future treatment and the nature of the poison within their bodies. The Court was very much “in favour of taking the samples” having evaluated the overall balance of the best interest’s decision making under the Mental Capacity Act 2005.

My Child has a statement of special educational needs – Will this be enforceable after 1 April 2018?

Some children or young people who have complex educational needs require additional support to enable them to meet those needs. In the past, the support required to meet such needs was detailed in a document known as a Statement of Special Educational Needs (Statements). Statements have now been replaced by Education, Health & Care Plans.

As the name suggests, an Education, Health & Care Plan is a legal document that describes the child or young person’s educational, health and social care needs. It should also specify how those needs should be met, including who should deliver the support and the frequency/duration of the support.

Transfers from Statements to the new Education, Health & Care Plans have been phased in over the last three years. All transfers are due to be completed by 1 April 2018.

If your child still has a Statement on 1 April 2018 the local authority will still be responsible for delivering the support included in the Statement. In a letter to the local authorities dated 12 September 2017, Minister Goodwill confirmed that any Statement of Special Educational Needs for which a transfer review has not been completed by 31 March 2018 will continue to remain in force from 1 April 2018 until a transfer review has been completed and a decision is made about future provision. This ensures that children and young people who have Statements, for which a review has not been completed by 31 March 2018, do not lose support. For these children and young people, the local authorities will remain responsible for ensuring that the provision in their Statements is met. The Statement as a whole continues to apply until the transfer process has completed.

That being said, it is important to ensure that there is a formal transfer of the Statement to an Education, Health & Care Plan, particularly if the young person is due to leave school to attend another educational setting. You should therefore ask the local authority to carry out an Education, Health and Care Needs Assessment as soon as possible. This should incorporate up-to-date information and advice from relevant education, health and social care professionals involved with your child or young person. It is important to ensure that the child or young person’s needs and support required to meet those needs are accurately detailed in the new plan. The child or young person should be invited to attend the review meeting to discuss whether any changes are required to the existing plan. The final Education, Health & Care Plan should be issued within 18 weeks from the start of the transfer process.

Our Court of Protection Department supports children and young people who lack capacity and who have special educational needs to ensure that they are receiving the right support to meet those needs. If you have any queries in relation to your child’s Statement or Education, Health & Care Plan please contact Nicola Gunn on 020 7940 4057 or e-mail to njg@anthonygold.co.uk.

Today marks the 3rd Mental Capacity Action Day

The purpose of today is to raise awareness of mental capacity and improve the implementation of the Mental Capacity Act in health and social care and also other sectors, such as legal, finance, police and housing.

The Mental Capacity Act 2005 came into force in 2007 and applies in both England and Wales. Its primary purposes is to provide a legal framework to those acting and making decisions on behalf of individuals who lack capacity to make decisions for themselves.

In August 2016 the Social Care Institute for Social Excellence reported that there are around 2 million people in England and Wales whom lack capacity to make decisions for themselves. In addition they also reported that those individuals are cared for by around 6 million people, including health and social care providers, doctors, social workers, solicitors, support workers and unpaid carers.

It is the role of those 6 million people to ensure that individuals are, as far as possible, empowered to make their own decisions.

There are 5 key principles under the MCA 2005 which must be applied when supporting an individual to make a decision. These are as follows:

  1. A person must be assumed to have capacity unless it is established that he/she lack capacity;
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to so do have been taken without success;
  3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision;
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or make, in his/her best interest;
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s right and freedom of action.

If it is determined that an individual lacks capacity then any decisions made on their behalf must be made in their best interest and in accordance with the MCA.

This can often be a complicated and difficult process. This is particularly so for deputies appointed by the Court of Protection and where P has significant and complex legal and financial decisions that need to be made on their behalf. The test must be applied by the decision maker to each specific decision and whilst an individual might have capacity to make straight forward decisions such as what to buy in their weekly shop, they may lack capacity to make more complex decisions i.e. where they should live and recovering assets following financial abuse.

We are appointed by the Court of Protection as a property and affairs and welfare deputy to over 100 individuals whom are vulnerable because of brain injury, mental health and/or other disabilities. As such we have extensive experience applying the provisions of the MCA and advising individuals on its application.

As a firm we also have significant experience providing a range of advice to and for the benefit of vulnerable individuals and we pride ourselves on ‘helping those whom most need it’. As such, we welcome a signature day like today which recognises the importance of protecting vulnerable individuals whilst promoting their independence.