Tag Archives: Moving into care

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!


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.


Adjusting to life as a carer

19 Apr


Adjusting to life as a carer


When you are a carer for a loved one, either spouse or parent, there is a period of time to adjust to the new role.  If you are caring for a parent, it appears to be a switch in roles, they cared for you and now you care for them.  Your life is now changed.


This takes time to mentally adjust to the new situation and there is a grieving in doing so, as you have lost what you have before.  However this grieving is very challenging, as it seems strange to grieve for someone who is still alive!  Many carers are clinically depressed with the struggle of the change, the new role and the thanklessness of the situation, particularly if it is a deteriorating situation.


It takes time to adjust, to make changes in your life, to find the time that you used to do something else, to then use as a carer.  And everyone in your immediate family has to adjust to that as well.


If you are working, then you can discuss any changes you might need to make with your employer.  If you don’t want them to know, there is no requirement for your to tell them, but you will have to if you want them to make adjustments for you.


It takes a huge amount of mental energy to be a carer, which is disproportionate to the amount of time it takes to provide the hands on support of visiting and dealing with whatever needs sorting out.


It might also mean that you have to give up something that you did before, at least for a while or change it.  When I was a carer, I made the decision not to go on long haul flights, it was just too far to get back, if there was a problem.  And I didn’t go away short haul very much!


I hear a lot of comments about how stressful it is to be a carer and about how people are able to cope.  People find ways to cope and it is useful to be mindful of your stress levels and find something that will allow you to deal with your stress, be kind to yourself.  Having good mental health is one of the most important attributes of being a carer.


There is a lot of pressure on you, as a huge amount of the cost of care is undertaken by unpaid carers, so the health and social care systems are set up to take account of the support that people are given.  It become something that appears expected, rather than treated with gratitude, as the generous gift of time and energy that it is.


The truth is, people get ill, people die, it’s not something families like to face, but nevertheless, it is true.   If as a carer, you have turned up and done your best, then that is all you can do.  You have done a good job and should be congratulated.

Mental Capacity – what does it really mean?

31 Aug


Mental capacity – what does it really mean?


When someone has lost their mental capacity, what does that mean?  With the Mental Capacity Act 2005, capacity is considered to be time and decision specific, but what does that mean?  Every decision that is made is made at a certain time, it might even be made each day at the same time, such as eating breakfast or getting out of bed, but each decision is made every day and tomorrow the decision to have breakfast is a new decision.  Capacity can be fluctuating, so if someone is very unwell today, they might not be tomorrow and their capacity can return.  This is why decisions are time specific.


What about decision specific?  Some decisions are much more complicated than others, such as the decision to move house, but a decision about what to eat for dinner is much easier, so someone with poor cognition may not be able to make one decision, but might be able to make another.


The statutory test of capacity at stage 2 of the decision making process is about understanding it, weighing it up, retaining it and communicating the decision.  So how does someone weigh up the decision?  The easy answer to that, is to ask them.


What isn’t part of assessing someone’s capacity is the “nice answer” or the “risk free answer”.  So whether someone with a cognitive impairment can decide to live with a relative or not, should not depend on whether the arrangement would work well or would be good for one of more of the parties.  Or just nice to see happen!  Ask them if they understand the proposition, look at the different aspects of it, how would an “average person” analyse the situation, unless you know they have skills in the area greater than an average person, then that’s the criteria to assess them by.


When deciding if someone has capacity to eat dinner, an average person would be unlikely to know how many grams of saturated fat they have eaten today, or how many calories.  An average person knows they are hungry and what they might fancy eating and that it’s approximately dinner time.  There is no reason to make the decision more complicated than it needs to be.


One of the key aspects of the Mental Capacity Act is the presumption of capacity, that someone is considered to be able to make a decision until it is proven that they can’t.  Capacity is often a balancing act and it is only when someone is in a coma or other minimally aware state that there is a total lack of capacity, even people so impaired that they are non verbal can refuse to eat or drink or have care undertaken.  And they might refuse to eat their meal, but agree to eat their pudding or sweets, because they know the difference and have a preference.


The ideas behind the Mental Capacity Act were about enabling and empowering people to make as many decisions that they can for themselves.

Caring for someone with a dementia

3 Aug


Caring for someone with a dementia


There are lots of different kinds of dementia and they have slightly different presentations, but the key points about all dementias is that they are changes to the brain, that affect memory and brain function, that is deteriorating.  There can be changes in personality and the deterioration might not seem to make sense, as someone can still retain one key skill long after they have lost other key skills, it doesn’t always work that the person with dementia loses everything at a nice even pace!  And importantly, eventually it will be terminal.


It is useful to get a diagnosis of the kind of dementia that the person has, as it will help the carer to understand some of the changes that will happen.  Diagnosis is also a gateway to access some services, that will support both the person with dementia and/or their carer.  And making sure that the carer is supported is really important, as without the carer their life would be much more impaired and disempowered.  The carer will facilitate the best outcome that can be achieved.  In the UK dementia costs £26bn a year, the biggest part of that figure is made up of the work of unpaid carers, £11bn, and the NHS and social services make use of that unpaid care, which means supporting the carer to ensure that carers can keep going.


There is no cure for dementia, there is a lot of worldwide work being done currently looking at different cures, creating new drugs and repurposing existing ones and although there have been some promising initial results, I have been told that a cure is a least 10 years away, if not more.


Because there is no cure, the only therapies are those that keep the person in the state that they are in, but do not roll back the clock on the progression of the illness.  These drugs only work for a certain period of time, as they will not stop the underlying progression of the illness, but will maximise the cognitive abilities that they have.


The other therapies that are useful are the social interactions, as long as they are meaningful and there is a lot of work being done on these.  Music seems to be quite powerful to many people.  Football dementia cafés are great for football fans and here in Plymouth we are lucky enough to have a dementia café for veterans.  Elsewhere there are dementia farms, which for former farm workers is incredibly powerful that they are once again able to participate in the workings of a real farm.  When the idea was first mentioned there was concern about the risk, but the risk is managed and the participants get a lot of value from it.


Carers need support and respite, they need to be able to have a life of some kind away from their caring role, for an hour, a day or a week. Family carers do an amazing job to care for people with dementia and yet they are working alongside a progressing condition that is slowly taking their loved one away.  85% of carers are clinically depressed within a year of diagnosis, it is hard dealing with the condition and its progression.


A person with dementia can live a fulfilling life, they can be empowered to do the things that they want to for as long as they are able to.  It takes the carer and the understanding of a whole community to do it well.


If you need help caring for a loved one with dementia, let me know, I understand what it is like.

Wealth Preservation Schemes – Part 2

2 Oct

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Wealth preservation schemes – Part 2


Following on from my earlier blog about Wealth perseveration schemes.   So far I’ve covered the points that they are challengeable, they may not save tax overall and may cost more, they may not save fees overall and they may not resolve a misdirection of assets and may even create one.


The other point that the leaflet I have been given raised was the Court will take over your affairs if you lose capacity.  Firstly the best thing to do is create Lasting Powers of Attorney, so that you can choose who manages your affairs if you are unlucky enough to lose capacity.  If you don’t then your loved ones can apply to the Court of Protection to appoint someone to manage your affairs.  So to be clear, it is not the Court taking over, they simply retain oversight of someone else managing your affairs.  Their role is to ensure your affairs are managed properly and in your best interests and that your money is used for you and not anyone else whilst you are alive, so that you estate can ultimately be dealt with in accordance with the wishes expressed in your Will.  The Court of Protection is not some malicious body dealing with your affairs, nor is it draconian in the orders that they make.


So in conclusion, will this scheme save probate, yes might well do, if you transfer enough assets into it, but it won’t save money overall.  Will it avoid Inheritance Tax, no, the Trust is taxable and subject to IHT.  Will it protect your bloodline, it probably will ensure that your bloodline inherit your estate, but what if you want someone who isn’t your blood line to inherit?  And what if someone new comes into your life?  Does it stop claims against your estate?  It can certainly make them harder, but whilst the Court cannot compel Trustees to exercise their discretion, the Court can make orders on the basis that their expectation is that they will exercise their discretion in a certain way.


Can the scheme protect from relationship failure, it can’t prevent the relationship failure, but it can put assets out the of reach of the family Court in some circumstances, so yes, it might well be able to do this in some circumstances.  It will protect disabled beneficiaries, yes it probably can do that, but if you do have a disabled beneficiary, then you should take specialist advice about protecting them.  There are some tax reliefs available for disabled beneficiaries.   It avoids Court of Protection control, yes it probably does, but Court of Protection control is nothing to worry about and depending on who the Trustees of the Trust are, Court of Protection control may be preferable.


Does it protect your estate from bankruptcy, it depends, if you gift your assets into the Trust and live for more than 5 years, those assets are no longer available if you become bankrupt, but any assets outside of the Trust are potentially available to the Trustee in bankruptcy.  But if you hadn’t given your assets away into Trust, then you’d probably never go bankrupt anyway, so whilst it will protect them after 5 years, the point is a bit of a red herring.


Does it protect your estate against care home fees?  It might, sometimes these schemes can work, and sometimes they are challenged, but not always.  It does depend on the circumstances and you would benefit from good advice.


Also, it doesn’t make cappuccino, nor does it cure old age, dementia or cancer!!


One final word, take good balanced advice if you are thinking of one of these schemes, understand the negatives as well as the positives, if it sounds too good to be true, it probably is!

Wealth preservation schemes – Part 1

25 Sep

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Wealth preservation schemes – Part 1


I’ve just been handed a leaflet about this fantastic scheme to preserve your wealth against the threat of dreaded care home fees.  This totally amazing scheme will also save you thousands in probate fees, save taxes and avoid any misdirection of assets – I’m surprised it doesn’t make cappuccino as well!!  It also says that the Court will take control of your assets if you lose capacity.


So to give a balanced view of these kinds of schemes, I’d like to say the following:  They might work, but they might not – there is no guarantee.  One of the important things to understand about these schemes is that they are potentially challengeable and depending on the sales tactics of the company selling them, they can be even more challengeable.  I have heard on the grapevine of a Local Authority that challenges every single scheme created by a certain company, as they are aware of the sales tactics used and consider every single one to be a potential deprivation of assets.


If you move your assets into a Trust, which is what these schemes are, then depending on when you go into care in relation to the date of the transfer of assets, the Trust can be undone.  So if you need Local Authority financial support within 5 years, the Local Authority can apply for a bankruptcy order to get the Trustee in bankruptcy to undo the transaction, not a nice thing to happen!  Even after 5 years, the Local Authority can still financially assess you as though you own it (although after that amount of time they might not).


It might save Inheritance Tax, but you would have to live for 7 years after the date of the transfer of assets, otherwise the IHT is still.  Even if you do live for 7 years, the Trust is taxable in its own right, so you will be paying tax and if you have transferred your house into a discretionary Trust and have not been granted an interest, then you could be paying tax on something that was exempt from tax.  The message is that there is potentially no huge saving on tax, in a good scenario there might be a saving, in a bad one, there could be more tax to pay!


Saving thousands in Probate fees.  The cost of getting the Grant of Probate is £215 if you are applying privately or £155 if you apply via a solicitor, so not thousands then!!  If you choose to appoint a solicitor to assist with the administration of the estate, then the fees will vary depending on the size and complexity of the estate and yes, they could be thousands.  But it will cost thousands of pounds to create this trust, so no overall net saving and it will cost hundreds or even thousands to administer the trust during its lifetime.  So yes, there is are no fees on death, which is at a time when you no longer need the money, but there are fees during lifetime, when you might need it.  This is a total red herring and hides what is really going on.


How about misdirection of assets?  For that to happen, then there will need to be no planning or poor planning, as in a Will you can direct exactly who you want to have your assets after death.  A Will also gives you options to change your mind as life and circumstances change.  Once assets are in a Trust, then they belong to all the various named beneficiaries, so what if someone new comes into your life and you want to include them?  Unless there is a clause that says that you can add a new beneficiary into the Trust, then you can’t benefit them, so the Trust may create a misdirection of assets. It might work in some circumstances, so if your surviving spouse remarries, you may not want their new spouse to benefit and you probably want to ensure that the assets ultimately return to your children and this could work well, but there are issues with this.  Good Will planning is essential and review the Will to ensure it is still relevant.