Caring in Croydon: The Legal Bits

By - Friday 4th October, 2013

Following on from his introduction to the state of adult and elderly care in Croydon, local solicitor David White talks us through the legal aspects of care

Photo by Flicktone. Used under Creative Commons license.

Photo by Flicktone. Used under Creative Commons license.

There are 30,000 people in Croydon who are caring for someone who is elderly, ill or disabled. At some point in our lives, 40% of us will become carers, according to estimates.  It’s therefore a big issue. In this article I hope to touch on some of the legal matters which frequently arise.

1)  Lasting Powers of Attorney

Lasting Powers of Attorney (LPAs) are designed to enable people, while they are still mentally capable, to decide who they would like to deal with their affairs if they are ever unable to act themselves.

There are two types of LPA. One covers property and financial affairs, and the other health and welfare matters. You can ask a solicitor or other professional to prepare these documents for you, or you can obtain the forms yourself from the Office of the Public Guardian or online.

You’re required to have either one professional, or two lay, “certificate providers” – people who will certify that you understand what an  LPA is and what its effect will be. After it has been signed and certified the LPA has to be registered with the Office of the Public Guardian before it can be used.

In my opinion it is a good idea for everyone to consider making LPAs, perhaps at the same time as making a will. It is particularly important for someone who might be in the early stages of dementia, while they still have the mental capacity to make an LPA.

2)  Court of Protection

If someone becomes mentally incapable, and there is no Lasting Power of Attorney in force, difficulties sometimes arise concerning financial management or other matters which need to be attended to. In such cases it is sometimes possible to make informal arrangements. For example, arrangements can usually be made for someone else to collect state pensions. In other cases, for example, if care fees have to be paid or a house has to be sold, it’s necessary to apply to the Court of Protection for appointment of a “Deputy”. This is a much longer and more expensive process than making a Lasting Power of Attorney, and some people think the Court interferes too much. That’s why I’ve recommended getting LPAs in place while the person concerned still has sufficient mental capacity if possible.

3)  Financial Assessments and paying for Residential Care

This is a complex area, but basically if a person has assets of over £23,250.00 they have to pay care fees themselves. Usually the capital value of a house or flat is taken into account, but there are some exceptions (eg. where it is jointly owned, or is occupied by a spouse or civil partner, or certain specified relatives aged 60+).

I’ve known cases in Croydon where a person has sold their house or flat and used almost all their savings to pay for care.

The government has announced that it will introduce some reforms in this area, following the “Dilnot Report”. However many experts believe the reforms will have limited impact as the full package proposed by Dilnot is not being implemented.

Most people with dementia do not qualify for having all their care fees paid by the NHS

Two points are very important for carers to remember on this subject. The first is that no-one is obliged to sell their home – instead they can apply to the council for the “deferred payments scheme”. In this case the person in care is assessed to pay what they can from their pensions etc. and the council pays the balance, which is then rolled up as a charge on the property and paid off when the person dies or the house is sold.

The other important point is that if a person qualifies for “NHS Continuing Care” all of their care fees are paid by the NHS. Most people with dementia do not qualify as they are regarded as “social care” rather than “medical care” cases (a situation which I find bizarre and unreasonable).

However, if a person has complex medical needs, or their behaviour is unpredictable and requires considerable input from medical staff, it’s sometimes possible even in dementia cases to argue successfully for NHS Continuing Care funding, which of course can make a huge difference financially.

The above is just a snapshot of some of the issues which arise. If you’re a carer and you need legal advice, go to a solicitor who specialises in this area (such as a member of Solicitors for the Elderly).  You can also obtain useful advice from charities working in this field, such as Age UK, Alzheimer’s Society, Stroke Association, etc., or from carers’ support groups.

David White

David White

David lives in Park Hill, Croydon. Until his recent retirement he was a solicitor specialising in elderly client matters. He is a member of the Labour Party.

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  • Anne Giles

    What a useful article. My brother and I had Power of Attorney for my mother. I used to receive all her mail and would contact the bank for her, cancelling all the direct debits she kept organising to charities (her parents were wealthy, so had a Charity day). I looked after all her finances. Unfortunately, we did have to sell her house in order for her to go into sheltered accommodation. All the other residents had it paid for. We had to pay out of the proceeds of the sale of her house. When she went into a nursing home, the NHS paid, as she had malignant melanomas.

  • Christian Wilcox

    Sadly Dilnot is not viable for those who understand how it works.

    It does not move the £23,000 cap, so people with savings of 23k to 100k will still lose everything. So that’s poor people.

    Rich people with savings over 100k are the only people that will benefit. They will always have cash left due to the 100k cap. So if they live in a 500k house they’re rolling in it ( for example ).

    Considering wealthy pensioners also get massive tax breaks elsewhere it’s pretty obvious why the Thatcherites love Dilnot. The Rich get let off ( once again ), whilst The Poor lose everything. Not exactly fair.

    Dilnot is based on Thatcherite principles. It’s just not up to the task.