Lasting Power of Attorney (LPA)

Guide to lasting power of attorney

What is a Lasting Power of Attorney? – a guide

The principle behind lasting power of attorney (LPA) is to make provision in case your mental capacity deteriorates and consequently you are unable to make decisions and manage your financial affairs. The scenario often thought of is a person with dementia, but lasting power of attorney may be needed for many other situations too, such as after a stroke or car accident.

Why make a Lasting Power of Attorney?

It is only possible to apply for Legal Power of Attorney while you have capacity. If you suddenly lose mental capacity, it will be too late to apply for an LPA. In this situation, your relatives would need to apply to the Court of Protection in order to act on your behalf. This process is far most costly and time consuming than applying for an LPA in advance while you are well and have mental capacity.

Two types of Lasting Power of Attorney

There are two different LPAs which carry distinct rights and responsibilities. You can apply for one only or both. They cover:

  • Health and well-being
  • Property and financial affairs

Health and welfare LPA

This gives the individual/individuals acting on your behalf (called attorneys) the power to make decisions about:

  • Your day-to-day personal care, such as eating, washing and dressing
  • Your medical care
  • Whether you need to move into a care home
  • Decisions about life-sustaining treatment

Property and financial affairs LPA

This gives your attorney/attorneys the power to:

  • Manage your bank or building society accounts
  • Collect your pension or benefits
  • Make a decision about and manage the sale of your home

Choosing your attorney

The first step in making an LPA is choosing your attorney or attorneys. In legal terms, you are called the ‘donor’ giving provision for ‘attorneys’ to act in your best interests should you lose mental capacity. This is very important decision: an attorney needs to be someone who you can trust to make decisions on your behalf. You can choose more than one attorney; there is no limit to the number of attorneys you can appoint. But having lots of people may make decision making more difficult. Often, people appoint their children as attorneys. There are some rules about who can act as attorney, according to LPA type:

Health and Care LPA

  • Attorneys must be 18 and over with mental capacity

Financial LPA

  • Attorneys must be 18 and over, with mental capacity and must not have been made bankrupt
  • A trust corporation can act as financial attorney. This may be a good option for individuals who do not have a spouse, children or close family, although they will charge for acting

What do I have to do to make a LPA?

You can make your LPA application in three different ways:

  • You can go through the process yourself online through the Government website. Start here: https://www.gov.uk/power-of-attorney/overview
  • If you are making an application by yourself and need help, the Office of the Public Guardian is the best place to ask for advice and support. They can be contacted by calling 0300 456 0300 or email: customerservices@publicguardian.gsi.gov.uk
  • If you would like to make the application yourself but want to apply with paperwork, rather than online, you can contact the Office of the Public Guardian for the relevant forms. Your local Citizens Advice Centre should also be able to provide them
  • You may prefer to make a LPA with the advice and guidance of a solicitor. If you know a reputable local firm, you may find this is a good choice. Solicitors fees for working on your LPA are likely to be upwards of £250 but should be no more than approximately £500.

The process: step-by-step

There is a form for each of the two types of LPA, health and well-being, financial and property. Once you have completed the form, a number of signatures are required. If you are making your application online, you will need to print off the forms so they can be signed.

  • An independent professional will need to sign the form to state that you have the mental capacity to make an LPA, that you understand what an LPA is and that you made the decision yourself. This person is called the certificate provider and they are usually a professional such as a doctor, social worker or solicitor.
  • The certificate provider must have known you for two years, but they need to be independent; they are not a family member nor are they named as an attorney
  • You need a person to witness you signing the form
  • Each attorney must sign the form, agreeing to act as attorney if needed and stating they understand what their duties involve

How long does it take?

It currently takes eight to 12 weeks for applications to be registered (this means the process is complete and the LPA is legally binding). It costs £82 for each LPA you apply for, therefore £220 if you are applying for both Health and Well Being and Financial and Property. However, if you do the application yourself without using solicitors, there are no other fees. If you would struggle to pay the application fee, the fee may be waived; you can ask advice from the Office of the Public Guardian or your Citizens Advice bureau.

Who is in control?

A common barrier to people applying for a LPA is a fear it means they will lose control over their life and their money. Registering an LPA does not change who is in control: no changes will take place unless you lose mental capacity.

Mental capacity is something which is very carefully assessed with clear criteria. For example, becoming a little more forgetful and having difficulty with the more complex side of personal banking does not mean loss of mental capacity. Power is only transferred to your attorney if there is a substantial loss of capacity and it is in your best interests for someone to make decisions on your behalf.

It is helpful if you talk to the people you appoint as attorneys about your wishes, so you can have confidence that they fully understand your preferences if do they need to act on your behalf at a future stage.

Lifetime planning

Bear in mind, applying for a LPA is one aspect of lifetime planning and you may also wish to seek legal and financial advice on preparing a will and estate planning.

We helped Janet Baker to find a care home for her Mum six years ago. We were able to help her once again when, like many others, their money fell below the funding threshold which meant they faced unaffordable top-up fees

Janet Barker Care Home Top-Up Fees

Mum went into a care home six years ago after having a stroke. At the time, I had spent a long time searching for care homes and despairing about the lack of support, clear information and guidance. Then I was referred to Carehome Selection and given an adviser who became a life-saver; she was calm, knowledgeable and went out of her way to help. We visited several homes together and choose one which met Mum’s needs, providing the nursing and initial physiotherapy she required, but also a stimulating environment with plenty going on.

Mum is self-funding and after six years of paying care home fees, her resources fell below the funding threshold, which means you then have to pay third party top-up fees. It is a terrible situation: we were told we would have to top up her fees with £260 each week for her to stay in her care home and being pensioners ourselves, that was impossible. The social worker was helpful but told us there weren’t any care homes in the area that would accept Mum without top up fees. She couldn’t do any more for us except suggest we rang around care homes and tried ourselves. So again, I turned to Carehome Selection.

I spoke to an adviser called Jacqui who said “leave it with me”. She called care homes in the area where we live, Rugeley and in Brownhills, near to where Mum’s care home was located. She quickly came up with two homes that would accept Mum with a much more manageable top up fee of £50 a week. Jacqui offered to take me to visit one of the homes and so we travelled there together. The Matron was not there but Jacqui knew the home well and was able to show me around herself.

I liked the home, which is in Brownhills and is well suited to Mum’s needs. Nevertheless, I felt extremely worried about her having to move at the age of 93. We were due to go on holiday at the time and I was worried about Mum settling in while we were away; Jacqui even offered to go in and see how she was getting on. She really could not have done any more. We have the reassurance that it is affordable: the top up fees are paid by the council because they were unable to offer us anywhere which didn’t require top up payments.

Mum has been in the new care home for six months now and is getting on well. I imagine many families are facing this extremely difficult situation of having to move elderly relatives when their own money runs out. Once again, Carehome Selection came to the rescue and filled the gap in support. The social worker we spoke to was very nice, but they are very limited in terms of how much time they can spend supporting you. Whereas Jacqui told me I could call her any time, “day or night” and you know you have someone working away on your behalf who has a great deal of local knowledge and experience. I am very grateful for this much needed service and for the reassurance that you can go back to them again when new challenges arise.”

 

Is there any funding for respite care and who qualifies?

Replacement Respite Care

What is respite care (sometimes called replacement care)

Respite care, also called replacement care, is support which allows the carer to have a break from their responsibilities and have some time to do the things they choose. It may involve the cared for person spending a week or more in a care home, or more help may be given within the home, such as someone coming in to help during the night.

The carer’s needs assessment

The first step, for all carers, is to ask your local authority to carry out a carer’s needs assessment. The Care Act, 2014, which partly came into force in April 2015 has some significant implications for carers and respite. Local authorities now have a legal responsibility to carry out a carer’s needs assessment for anyone who requests it (regardless of their financial means).
The carer’s needs assessment is distinct from the care and support needs assessment of the person receiving care; it is focused on the person responsible for caring, considering their needs and the impact of caring upon that individual.

A carer’s needs assessment will be carried out by your local authority (or by a company working on behalf of your local authority) and may be face-to-face, by telephone or online. It will consider the impact providing care and support has one your well-being, what you would like to achieve and do beyond your caring role. If the carer is assessed as having eligible needs (according to national criteria) the carer must have their own support plan.

Who pays for respite care?

Whether you are entitled to be paid for respite care depends on the type of funding the individual and their carer are entitled to. There are different rules and entitlements to respite for those with continuing healthcare funding (NHS), those with a personal budget for care and support (local authority) and those who are self-funding.

Respite care for people with continuing healthcare funding

To qualify for continuing healthcare funding, an individual is assessed as having a primary health need, rather than social care (washing, dressing for example). Those qualifying are funded by the NHS and this type of funding is not means based. We explain the continuing healthcare assessment in more detail here.

Respite for primary carers is considered as part of continuing healthcare packages. Sometimes, people are given personal budget with greater control over how their budget is spent, including consideration of respite. If you have a package of care and support managed by your clinical commissioning group (CCG), this should be organised in close communication with you, including considerations about respite, so it is best to contact them in the first place if you are a carer and feel respite is needed. Here is an example of how we organised respite care for a carer whose mother was living with her and had continuing healthcare funding.

Respite care for people who qualify for local authority funded care and support

To qualify for local authority funded care and support, the individual’s care needs assessment will have identified eligible needs (under nationally set criteria). We explain more about this process in more detail here. If there are eligible needs, the local authority is obliged to draw up a plan for meeting those needs. However, this type of care, called social care, is not free; it is means tested, based on your local authority guidelines.

If you are a carer of a person receiving local authority funded care and support, it is advisable for you to have a carer’s needs assessment. Your local authority is obliged to carry this out. If your needs assessment shows an impact on your well-being and a need for respite, the funding for respite should come from the individual’s care and support budget, not be a cost for the carer (Care Act, 2014).

Respite care for people who are self-funding

Even if an individual is paying for their own care, some of the same principles of support still apply: the carer is entitled to a carer’s needs assessment which the local authority must carry out, including support and advice in terms of how the carer’s needs can be met. Although the local authority will not pay for services, they can signpost you to services, including ones provided without cost. Our care and support advisers specialise in helping people who are self-funding and our company has 20 years of experience in setting up respite care for families.
There are some excellent projects such as Shared Lives which provide respite care, where the individual stays with a family matched and assessed as being able to meet their needs, allowing their carers to have a break.

Emergency care replacement schemes

Many local authorities now have what is used called Emergency Care Replacement Schemes. Carers register with their local authority to ensure that if something happened to the carer which impacted upon their ability to maintain their caring responsibilities, alternative provisions could be quickly put into place. Some schemes also involve free services for carers, such as support groups and therapeutic sessions.

CHS Healthcare welcomes the 40 per cent increase in NHS funded nursing care payments to care homes

Dr Richard Newland NHS Nursing Funding

We welcome the significant 40 per cent rise in the amount the NHS pays to care homes for the cost of funded nursing care (FNC).

FNC is money paid by the NHS for the nursing carried out by nurses to support and care for residents in nursing homes (and care homes with nursing). The funding covers the nursing element of an individual’s care; it does not include other costs such as the accommodation and social care.

The standard rate has been increased to £156.25 per week (having previously been £112 per week) and the higher rate rises to £205.04 (previously £154.14), it was announced this week (July 13, 2016).

The changes are in response to an independent review by Mazars LLP, which recommended the 40 per cent rise. The increase for all eligible will be backdated to April 1, 2016.

Dr Richard Newland, chief executive of CHS Healthcare which provides the Care Home Selection service, commented: “This is very welcome news that recognises the extremely important work of nurses in care homes and the need for this to be properly funded.”

Professor Martin Green OBE, Chief Executive of Care England, the largest representative body for independent care homes said: “The care nurses give in nursing homes is a vital part of our whole care system and moving to a more realistic means of funding this care is an important step in the right direction. We must now also determine how the FNC should be reviewed annually going forward.”

To qualify for NHS funded nursing care, an individual should be resident in a care home that is registered to provide nursing care. The individual will have been assessed to see if they qualify for continuing healthcare funding and even if they don’t qualify for this type of funding, they may need nursing care and therefore be entitled to FNC. If you would like your relative to be assessed for NHS funding, the best place to start is to go to your clinical commissioning group (CCG) or ask your GP.

We explain more about the different types of funding for care homes here.

Steve Spelman 4:45 pm