Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions

25 Oct

 

Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions

 

There are two ways in which a person can be appointed as an ongoing basis to manage the affairs of someone else and this is by appointing them under a power of attorney or the Court of Protection appointing them under a deputy application.  A person can appoint their loved ones or a professional whilst they retain the capacity to do so.  The Court of Protection will appoint someone if this has not happened, they lose capacity and need someone to support them or take over. Health and welfare decisions can only be made when that person lacks capacity to make decisions for themselves, so they are always relying on the decision making of the attorney to make decisions that they would be happy with.

 

In general, a professional appointment of a solicitor tends to be for finances only, as it is generally accepted that loved ones would know the person well enough to make health and social care decisions, but it would be hard to make decisions against medical advice for a professional who doesn’t know what the individual would want.  It is for this reason that the Court of Protection would be very unlikely to grant a health and welfare deputyship order to a solicitor.

 

So, there are limited circumstances in which I will agree to act as either deputy or attorney for health and welfare.  The circumstances are either when they have no suitable family member to act and I have had an opportunity to sit down with them and go through their medical history and have an in-depth discussion about their care priorities.

 

The other circumstance that I will act is where I am co-attorney with a family member who lives further away and needs someone to be “on hand” to deal with the issues that arise.  I would always defer to the family member who knows the person better, however with my experience, I can make suggestions to the co-attorney about how the persons care can be best managed.  This arrangement works well, I stay in communication with the family member and they are able to effectively support their loved one from a long distance away.  The attorneys and the person themselves know that the role will be undertaken professionally and that their distant loved one is supported in their attorney role, which can be distressing with an added element of feeling helpless through the distance in which they live away.

 

This is work that I love, I get to meet the person and make sure that they are cared for in a manner that is best suited to them and that their loved ones are informed, but still able to maintain their own lives.  It is a great outcome for all!

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Managing the affairs of someone else – A professional appointment – financial affairs

11 Oct

 

Managing the affairs of someone else – A professional appointment – financial affairs

 

Following on from my last blogs about managing the affairs of another person, what should the person do if they have no-one to do that or if they don’t get on with their family?  They can appoint a professional like me and I act for a number of individuals in some cases for both the finance and health and welfare.  I can also be appointed by the Court to be deputy (which is similar to the authority of an attorney), but these appointments are usually for financial affairs only.

 

My appointment is no different from the appointment of the family member, with the one exception that I charge a professional fee for the work that I do.  How much the fee is, depends on the complexity of the matter and in particular where they live, as if they live in care and they require the payment of their care fees and an annual welfare visit, the cost is far less than someone who lives in the community and due to issues arising I have to visit every few months.

 

I have a duty to maximise the estate for the benefit of that person, which means that I have an obligation to ensure that the funds are appropriately invested to ensure that there is an income.  I need to give consideration to the income and how the money is being spent, as someone who has only a couple of hours care a week or even a day, will spend less money than someone who has a full time live in carer.  How the estate should be managed has to have all the relevant information taken into account so that a bespoke strategy is achieved.  I even have to consider how much money is kept in one bank, as if the bank goes bust only the first £85,000 is insured and the rest could be lost.  I have to consider moving the excess to protect the client, if the worst happens.

 

I might be asked to make gifts and I have to consider whether that is reasonable.  I might have to take control of high value assets, so jewellery might need to go into a safety deposit.  If they have a safety deposit box, then I will need to know what is in it.

 

It is also useful to know what is in the Will, so that I don’t sell anything that is specifically gifted in their Will, such as jewellery or property.  If the donor leaves their house to someone and I’ve sold it, the disappointed beneficiary will not be happy with me and this is a circumstance that a statutory Will might be appropriated, so that the Court of Protection will grant a new Will giving a share of the estate that equates to the value of the property to that beneficiary.  So if there is a house worth £200,000 and cash worth £100,000, when the property is sold, whoever receives the cash will get £300,000 if there is only cash, but the Statutory Will would give 2/3 to the person who would have had the property and 1/3 to the person who would have had the cash.

 

My overall aim is to ensure that the wishes of the person are carried out as far as is possible to achieve, so if the client doesn’t want to go into care and it is possible to arrange their care in such a way to achieve that, then I do so.  If their primary concern is to be safe and cared for, then admission into care in some circumstances might be the right decision for them.  How I deal with their money depends on what their financial needs are, what their income is and what their capital is.

 

The firm that I work for has to insure the client’s money as part of their liability insurance, so within the firm there are safeguards to ensure that the clients’ money is safe from fraud or theft, including from me!  It is for this reason that I would not act with a co-attorney for financial matters, as I remain also responsible for the running of their affairs, including the fraud by co-attorney.

 

Having authority over another’s affairs is a big responsibility, which I take very seriously to ensure that the person is cared for as best as is possible to achieve and in the way that they want.

 

Managing the affairs of someone else – Financial Affairs

20 Sep

 

Managing the affairs of someone else – Financial Affairs

 

Following on from my last blog about managing the health and welfare decisions of another person, how do you manage the financial affairs of another person?

 

The starting principles are the same as with the health and welfare, what did the person themselves do before they became ill?  This should form a very important part of your decision, but you are not there to make their decisions, you make your own.  The question is what is in their best interests and all aspects of this issue should be taken into account when making this decision.

 

With regards to finances though, there are some rules around what can and cannot be done, as access to money puts the person at risk of fraud and theft.

 

Firstly, the attorney and donor should not have mixed finances, the funds should be clearly separated out into different accounts, so what money belongs to whom is clear.

 

If there is a large sum to invest, such as the proceeds of the sale of a property, then the investment strategy should be undertaken with the advice of a financial advisor, who will carefully look at the situation and work out what the investment risk profile of this person should be.  Depending on the circumstances, including the health issues and life expectancy of the donor and the amount of money involved, there could be lots of different scenarios to consider in financial terms.

 

The donor should not make investments into the business of the attorney, to provide financial support for them.  This is considered gifting, rather than investing and there should be a great deal of care taken over gifting.  This is also an issue of mixed finances, which again, should not happen.

 

Gifting is a big issue and I get asked lots of questions about this.  Can the attorney make gifts?  There is no simple answer, the phrase that is used regarding gifting is that it should be “on occasion” and “reasonable in all the circumstances and in particular to the size of the estate”.

 

What does on occasion mean?  It is birthdays, Christmas, graduation, house warming etc, gifting should be done at these specific times for specific religious, family or cultural reasons, not just because someone is short of money or has seen something in the shops that they fancy!

 

What about “reasonable in all the circumstances”?  The gift must be one that the donor either did or would have made had they been well.  There is no reason that they would gift anything to an estranged family member, if they hadn’t done in the years preceding their illness.  A plant or toaster is a suitable house warming present, the gift itself must be suitable for the occasion.

 

The other key part of the phrase about the gift being reasonable, is that it must be reasonable in particular to the size of the estate.  The Court of Protection has said that if the estate is over the value of the nil rate band, which is currently £325,000, then if there is nothing unusual about the estate, then the attorney can give away the £3,000 per year that is exempt for inheritance tax.  Where the size of the estate is smaller, part of the consideration will be what gifting that person made when they were well, such as £10 for the birthdays and Christmas of their two children will cost £40 per year, which would be reasonable for a modest sized estate.  When in doubt, the emphasis is to be less generous rather than more or to not make the gift at all.  Any gifts larger than the £3,000 discussed above or loans to the attorney would need specific Court approval.  The Court’s general view is that money is for the donor and not for anyone else, so there needs to be a good reason to gift it, but thinking fondly of someone is considered a good reason.

 

Managing the affairs of another person can be challenging, often because it comes at a time when the family is in distress anyway, because their loved one is unwell.  I am happy to provide support to those attorneys who need some advice.

 

Managing the affairs of someone else – Health and Welfare

6 Sep

 

Managing the affairs of someone else – Health and Welfare

 

In the past I’ve discussed creating LPAs, so that you can appoint another person to manage your affairs, if you become unable to do so.  It is probably worthwhile looking at this from the other angle, how do you manage the affairs of another person?

 

I’m going to take these subjects one blog at a time, starting with how to make health and welfare decisions for another person.

 

The only time that you can ever make decisions about another person’s health and social care decisions is when they lack capacity to make decisions themselves.  Each decision is different, it relates to the complexity of that individual decision and the time in which it needs to be made.  So people can lack capacity for complex decisions (such as what care to have or where to live) and still have capacity for simple decisions (such as whether they are thirsty or want to eat chocolate).  We almost all have something that is a pleasure to us, it becomes a habit, it might be a certain piece of clothing or a certain food (chocolate is a good example) and so people know for a long time that they like that thing, even when they lack insight into the bigger picture of their situation.

 

So the things to consider when making a decision is what would the person want?  That doesn’t necessarily mean that this is the decision that you will make, but it has to be a big influence on your decision.  Sometimes what people want isn’t possible (most people don’t want to go into care, but it might become necessary).  They might not want to make a fuss and accept what is going to happen, but that also might not be the right thing for them.

 

When making a decision you have to look at all the factors, the pros and cons of any situation and in the end you make the decision yourself, if you are attorney or deputy for health and welfare.  It must be an individual decision taking into account all the information that you know about this person, it should not be a generic decision about someone of the same age, race, gender, disability etc.  People have the right to make an “unwise choice” and should not be deemed to lack capacity because they do so and this also goes for attorneys, but the unwise choice must be in their best interests.  The primary purpose of the decision should not be to end or shorten their life, even if that is the case, there need to be another motivation to make a decision to shorten someone’s life, around why it is in their best interests.  This is to overcome the potential conflict of interest that arises when an attorney is a beneficiary of the estate and will ultimately inherit, so the shortening of life will hasten the inheritance.

 

Whatever you decide, you are responsible for the decision and the reasons behind the making of that decision, so if this is ever questioned by a family member of the authorities, the attorney will be able to stand by their decision and the reasons that they made it.  If the decision is not in their best interests, such as discharging a very poorly person from hospital to their home with no package of care, it would be considered neglect and an application to the Court of Protection to have that person removed could be made.

 

I’ve been consulted about lots of these kinds of matters and they are often around going into care, the continuation of medication etc, however I’ve also had the point raised by a client that they were a football supporter and did not want to wear the football strip of their rival team.  Universally the important decisions are often where someone should be cared for and their end of life decisions.  In order to help your potential attorneys, it is useful to have a conversation about these issues, so that they know your views.

 

Protecting your home from care home fees?

23 Aug

 

Protecting your home from care home fees?

 

I’ve recently been asked a few times about what can be done to stop the property having to be sold to pay for care home fees.  The irritating answer is – it depends and possibly not much!

 

It is entirely understandable that people who have worked hard to save their money and own their house want to be able to pass it on to their loved ones.  However Local Authority care is means tested and in Plymouth the cost of social care is about three quarters of the entire Local Authority budget and resources are limited.  The Local Authority cannot avoid its statutory obligation, to care for individuals within their area who are in need of their support, so this means that the Local Authority will look closely at the cases where they consider that people have intentionally deprived themselves of assets in order to avoid paying for care.

 

Whilst I fully understand the issue about wanting to pass on wealth, I do not understand why someone would prefer to lose choice and potentially quality as well for the care that they might need, just so their relative can benefit!

 

So, let’s go through some of the rules:

 

If the property is occupied by a spouse, partner, relative over 60 or disabled relative, then the property is exempt anyway.  If the property is jointly owned and the co-owner refuses to sell, then the only thing that could be sold is a half share and this has little value on the open market, which effectively exempts the share of the property.

 

The requirement for care must be “reasonably foreseeable”, due to existing poor health and people often think about doing something with their property once they are in poor health.  However if someone gifts their property when they are in good health, then this might exempt it, if they need care in the future, but since they may never need care, gifting the house and the costs involved might be unnecessary, particularly since only around 20% of people end up in care.

 

If a sole owner of a property gives it away, which these days, is often done by putting it into a trust, then that person has to continue without the need of residential care for a period of 5 years, or under the Care Act, the Local Authority can pursue that asset and undo the transaction, which defeats the object of doing it in the first place.

 

If the gift is made an absolute gift to a family member, which would be very unwise, then the person can find themselves homeless, if the family member gets divorced, gets into debt or dies.  If they get divorced, their entire asset portfolio would be taken into account, which would include the gifted property and this might need to be sold to deal with the issues relating to the divorce.  If they get into debt, their assets are realised to pay their debt and finally, if they die and leave the property to someone else, that person can serve notice and the donor of the gift finds themselves homeless.

 

So what if they give the property away and put it into a trust?  Trusts are taxable in their own right and are subject to Capital Gains Tax (CGT), Income Tax (IT) and Inheritance Tax (IHT).  Depending on the drafting and set up of both the trust and the assets, on the sale of the property to purchase a different one, the donor can find themselves having to pay CGT on the sale of their home, when if they owned it, they would not have had to pay.  There are also 10 yearly charges to IHT for trust assets over £325,000 at 20%, however the detail of calculating the tax is complicated!  Trusts require Trustees to care for the assets and depending on the kind of trust, may require minuted annual meetings and registration of the Trust with HM Revenue & Customs.

 

So I revert to my original answer of what can you avoid paying fees – it depends and possibly not much!  But I would also that it’s complicated and you might end up with something that you don’t intend, such as an unwanted tax bill!

How to communicate with someone who has a cognitive impairment – Part 5

9 Aug

 

How to communicate with someone who has a cognitive impairment – Part 5

 

I would again like to thank Kate Smith from Memory Matters some of the information for this blog.

 

It is important to remember that no two people with a cognitive impairment will communicate or present in the same way, but here are some more ideas that will hopefully help.

 

People with dementia are often very good at reading body language and at interpreting tone of voice, even when fairly confused.  It is more respectful therefore to tell the truth, rather than challenge their view of reality.  If the person with dementia is awake and wandering about in the middle of the night because they believe it is day time, rather than tell them they are wrong, it is better to suggest that they go to bed and if they don’t want to, then sit and chat about the weather or distract them in some other way and later suggest they go to bed.  It is far less confrontational than telling them that they have made a mistake about time and they should go to bed, it can lead to them feeling shame for getting something wrong!

 

When you are with a person with dementia and their carer, it is best to talk to the person with dementia and not their carer if that is possible and if talking about them, ask permission to talk to the carer.  It can just make them feel uncomfortable if they are being talked over rather than to.

 

People with dementia don’t like to be tested about things, the rest of us don’t go through our lives being tested, so they might not want to answer questions if a lot of them are being asked at once.  So make the person feel comfortable and if you need information, see if you can get it in a more conversational way, instead of lots of questioning.

 

If at all possible, it is better not to say “don’t!  As soon as anyone is told “don’t do that” or “you can’t”, people do exactly what they have been told not to, it is human nature!  It is much better to redirect to something else and only at the point their life is at risk should they be directly challenged, if not, then they can be distracted instead, it is a much nicer way to behave towards people with dementia.

 

Everyone is different, not everything that I have discussed in this series of blogs is relevant to everyone, but hopefully it will be helpful, if you ever meet someone with a dementia.

 

It is also important to remember that the skills that relate to dementia are transferrable to other disabilities and situations.

 

Be calm, be happy, smile and this will have an impact on the person with dementia, this will be perceived by the person with dementia and they will appreciate that you are a safe person for them to be around.

 

The withdrawal of food and fluid – the right to die – a new Supreme Court case

2 Aug

The withdrawal of food and fluid – the right to die

 

There was an important case this week in the Supreme Court, which is the highest Court in the UK regarding the withdrawal of food and fluid for some people.  This is changing the way that these matters are going to be dealt with in the future.

 

The first case of this kind was the sad case of Anthony Bland in 1993, he was a survivor of the Hillsborough disaster and was in a vegetative state, from which there was no chance of recovery, but as he was otherwise a fit young man at the time of the incident, he could have continued to live for years.  He had even undergone surgery without the need for anaesthetic, as he was brain dead and did not feel pain.  The case decided that it was in his interests to stop his food and fluid, so that ultimately, he would die, which is what happened.

 

Since then all other cases of minimally conscious patients go to the Court of Protection for a decision and each case is decided on its own merits.   Every case is expensive both in money terms, but also for the distress that the hearings cause to the loved ones, in part because of listening to the medical detail and in part with the anticipation and unknown nature of litigation.

 

So what did the Supreme Court decide?  In future all patients who are in either minimally conscious states or vegetative states can have food and fluid removed without the need to apply to the Court for an individual decision as long as both the family and the health authority agree that this is in the persons best interests.  If there is any disagreement, then this case is not relevant and also if the person is not clinically in one of the relevant coma like states.  If the criteria are fulfilled, then the person can be allowed to die following the withdrawal of food and fluid.  Their death will be managed to ensure that they are not in pain or suffering in any way.

 

There are estimates that at any one time in the UK there are about 3,000 people that this case might be relevant to.  The Court of Protection deals with around 1,500 new cases each year, with a legal cost of £50,000 to the health authority in each case, that £75m per year that the NHS can spend on something else, as well as end the distress to the families that the litigation causes.

 

There will still be cases that the Court has to decide on, those that do not fulfil the criteria of this case, in particular, when the family disagree.  This is not a case of assisted suicide, as without this artificial support these people would not survive, the only reason they are alive is the medical intervention that keeps that so, but there will be no doubt arguments that it is a case of assisted dying.  With no chance of recovery and no quality of life, I endorse the decision by the Court to make the situation easier for all involved, however heart wrenching that decision might be.