Top tips for carers

Increasing emphasis is being placed upon families caring for their older relatives and many of us are only too willing to shoulder the responsibility of caring for a loved one when they need our help. It can, however, be a difficult time with many issues to consider.

The following ‘tips’ can help prepare you for the road ahead.

Arrange authority to make decisions for someone

We all take decision making for granted and everyone should be encouraged to make decisions for themselves for as long as possible. However, if you are caring for someone who can no longer make decisions for themselves it can often be difficult for anything to be done on their behalf if the appropriate documents are not in place. It’s important that arrangements are made to ensure that someone is able to make decisions when needed; there are a couple of ways of achieving this.

Lasting Power of Attorney (LPA)

An LPA is a formal document which give people authority to make decisions on behalf of another (the ‘donor’) when that person is no longer able to make decisions for themselves.

There are two types of LPA. First, a Property and Financial Affairs LPA which enables the attorney to make decisions about managing the person’s finances, spending their money and buying and selling investments and, if necessary, property. Unless the donor states otherwise, the attorney will be able to act on behalf of the donor both whilst they still retain their mental capacity and if they should be come mentally incapacitated. This type of LPA will ensure that bills can be paid, financial assessments completed and assets managed in the most appropriate way to ensure that care fees are met.

The second type of LPA deals with Health and Welfare matters. An attorney for Health and Welfare is able to make decisions about the donor’s welfare including where they will live and decisions about medical treatment. Decisions about the donor’s health and welfare can only be taken by the attorneys if the donor does not have the mental capacity to make the decision in question.

Court of Protection

LPAs can only be made whilst the donor still retains the mental capacity. If the individual loses capacity and does not have a valid LPA (or its predecessor an Enduring Power of Attorney) then an application to the Court of Protection for someone to be appointed as a Deputy for them should be considered.

The Court of Protection manages the affairs of incapacitated people and can appoint Deputies to make decisions about an individual’s finances and in certain circumstances their welfare. The Court will control the extent to which the Deputy has authority to deal with the individual’s affairs.

The Court can also be asked to make one-off decisions about an individual’s finances or welfare, such as approving gifts for tax planning purposes or decisions about their on-going care or medical treatment.

Understand their entitlement to care funding

An important concern for individuals and their carers is how to fund their long-term care. Before steps are taken to arrange payment of care fees it is essential to understand the individual’s entitlement to help with funding their care.

NHS Continuing Care

If a person’s primary need for care is because of their health then the NHS should meet the cost of that care through NHS Continuing Care.

Whether or not an individual qualifies for Continuing Care is determined by assessing their needs against eligibility criteria. This has to take into account the totality of the person’s needs over 12 ‘care domains’ (including behaviour, cognition, mobility, nutrition) rather than just being based on their diagnosis. It also cannot be affected by the setting in which the person receives their care or the qualifications of those delivering the care.

Once it has been established that the person does meet the criteria, the NHS is then responsible for arranging and funding all of their care and this can include the costs of a placement in a nursing home.

Before a person is discharged from hospital, they should be screened to see if they would qualify for their ongoing care to be funded by the NHS.

If they have been turned down for funding there is an appeals process through which you can challenge that decision.

Local Authority Funded Care

In circumstances where the need for care is for personal care rather than health, the means testing procedure for Local Authority Funded Care will be applicable.

In general terms someone in receipt of long-term care must always contribute towards the cost of that care from their income. However, if the individual has capital in excess of £23,250 they will have to arrange and meet the full cost of their care.

It is essential that you are aware of the means testing rules and take appropriate advice so that you can make sure that the individual’s assessed contribution to their care is correct. There are specific rules that determine when that individual’s home is taken into account in assessing their level of capital and when it can be disregarded. There are also rules concerning jointly owned assets, for example property that is jointly owned by the individual and their children.

You should also then obtain independent financial advice as to how best to structure assets in order to meet care fees. If you do not already have a financial adviser who can help, the Society of Later Life Advisers is a national organisation of financial planners who are qualified to offer advice about planning for long-term care and will be able to direct you to your local member.

Review your wills

If your will makes provision for someone who is receiving or about to receive long-term care, it may no longer be appropriate for assets to pass to them outright if they survive you. Anything they inherit will be used towards paying for their care so you might want to consider incorporating into your will provisions to protect assets for the next generation. This can be by means of a trust or by diverting assets away from the person in receipt of care.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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