Lasting Power of Attorney - The Role of the Attorney

You will often hear me talking about the importance of making a Lasting Power of Attorney (LPA) – my family will vouch for that! And hopefully many of those of you that are reading this will now have made your own LPA and advised your family members to do so also.  

So, what now?!  If you have been made an Attorney, what are your responsibilities before and after the Donor loses mental capacity?

The Office of the Public Guardian provide the following supporting guidance on the role of the attorney:

·         LP14: How to be a property and finances attorney which can be found at https://www.gov.uk/government/publications/how-to-be-an-attorney/how-to-be-an-attorney-property-and-financial-decisions

·         LP15: How to be a health and welfare attorney which can be found at https://www.gov.uk/government/publications/how-to-be-an-attorney/lp15-how-to-be-a-health-and-welfare-attorney-web-version

An important distinction between the two types of LPA is that, once registered, a property and affairs LPA allows the Attorneys to use the LPA if the Donor has got mental capacity as well as when they lose mental capacity (unless a restriction has been put into the document specifying that the LPA can only be used when the Donor lacks mental capacity). In contrast, once registered, a health and welfare LPA can only be used when the Donor lacks mental capacity to make decisions (or the Attorney reasonably believes the Donor lacks capacity).

Firstly, check the LPA document.  The person making the LPA (the ‘Donor’) may have inserted restrictions, conditions and guidance into their LPA specifying the types of decisions that their Attorneys can and cannot make, as well as clarifying their duties.

The role of the Attorney differs depending on whether they are an Attorney for Property and Financial Affairs or Health and Welfare.

Property and Financial Affairs

A registered property and financial affairs LPA enables the Attorneys to make decisions about:
- Buying and selling property;
- Opening, closing and operating bank/building society accounts; and
- Claiming, receiving and using benefits, pensions and allowances.

Ask the Donor where they keep their financial information, so you know what accounts the Donor has.  Once registered, Attorneys for Property and Financial Affairs have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.

If the donor still has capacity, talk to them about how they would like you to manage their affairs.  For example,

·         give birthday gifts to children or other friends and family (and to what value)

·         like spending on clothes, music or trips (and how much)

·         donate to particular charities (and how much)

·         want to sell or rent out their home if they move into a care home

·         prefer to keep a minimum bank balance

Write these things down – or ask the person to write down what’s important to them.

Health and Welfare

A registered health and welfare LPA enables the Attorneys to make decisions about:
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Decisions about staying in your own home, perhaps with help and support from social services;
- Decisions about moving into residential housing and choosing the right care home; and
- Day to day issues, like diet, dress or daily routine.

If the Donor has capacity, it is useful to sit with them and discuss their values and views, their likes and dislikes.  The Donor may like to write a letter of wishes.  Discuss with them:

·         where they want to live

·         if they follow any particular diet, such as vegetarian or vegan

·         their views on health care – if you’re chosen in the LPA to make decisions about ‘life-sustaining treatment’, this should include what they’d accept doctors doing to keep them alive

·         any political or moral outlook that shapes the decisions they make

·         what will happen if they can’t care for their pets

·         how they like to dress and wear their hair

·         their hobbies and tastes in music, TV, radio or books

·         if they prefer being indoors or outdoors

·         small things that cheer them up, such as a favourite film, a crossword, a glass of wine or a walk

Having these conversations now will help the Attorney to make decisions on the Donor’s behalf if required.  It can be helpful to review these wishes regularly as circumstances change, especially in relation to health and welfare decisions.

Mental Capacity Act

When making decisions for the Donor, Attorneys have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice. The Attorney must follow these principles:

1.      Presume the Donor has capacity to make their own decision unless it is established that they cannot do so;

2.      The Attorney must help the Donor to make as many of their own decisions as they can.  You must not treat the Donor as unable to make the decision in question unless all practicable steps to help the Donor have been made without success;

3.      If the Donor has mental capacity, they have the right to make a decision for themselves even if unwise;

4.      The Attorney must make decisions and act in the Donor’s best interest when the Donor is unable to make the decision in question;

5.      Before an Attorney makes a decision, they must consider alternatives to ensure the least restrictive option is taken

When the Donor lacks mental capacity, the Attorneys must act in the Donor’s best interests in making decisions for them when they are unable to make the decision themselves. They must consider all the relevant circumstances. This includes consulting with the Donor and others who are interested in their welfare. When deciding what is in the donor’s best interests, bear in mind:-

• their past and recent wishes;
• any views the donor has expressed in the past;
• their beliefs and values;
• the views of family members, parents, carers, etc;
• the possibility that the donor could regain capacity;
• any other factors that may be specific to a donor’s circumstances; and
• any guidance in the LPA or other written statement.

Decisions that an Attorney cannot make
An Attorney should always be aware of the decisions that they have not got the power to make under an LPA.  For a property and affairs LPA, this includes:-

·         making a will on the donor’s behalf (although the Court of Protection may authorise an Attorney to execute a Will for the Donor);

·         voting on the donor’s behalf;

·         access the donor’s will unless the donor has included a condition that an Attorney can. However, an Attorney can apply to the Court if they believe the will is essential in helping them carry out their role, and the person who holds the will refuses to show it to the Attorney.

In addition, there are restrictions on making gifts and an LPA only grants power to make gifts in specific circumstances.

For a health and welfare LPA, decisions cannot be made about:-

·         consenting to marriage or a civil partnership;

·         consenting to a decree of divorce (or civil partnership dissolution) based on two years’ separation;

·         consenting to sex; 

·         medical treatment for a mental disorder if the treatment is regulated by Part 4 of the Mental Health Act 1983.

The Care Advice Centre – More than the day job

The Care Advice Centre provides Independent Social Work support and advice on a range of areas including:

• ·         Arranging care and support in the community or residential placements

• ·         Support with hospital discharges

• ·         Support with hospital discharges under the Mental Health Act and support at tribunals

• ·         Support with benefit applications

• ·         Review of care and support needs

• ·         Visiting services

• ·         Certificate providers for Lasting Powers of Attorney

• ·         COP3 and mental capacity assessments

• ·         Applications for NHS and Continuing Healthcare and support with appeals

• ·         Case management

• ·         Expert witness reports

• ·         Practice Educator services

In addition to providing these services we also attend events to give free advice on all of these areas.  In the past month we have attended an event during National Carers Week, meeting with members of the public to answer questions and give advice.  This included advice on how to access monies from charities to assist a gentleman, who is currently housebound, to purchase a mobility scooter to enable him to go out.  I also attended a small support group to speak with members about Lasting Powers of Attorney.

Last week we became members of the Corby Dementia Friendly Community Steering Group.  The focus of this group is to create a dementia friendly community in Corby, working with other businesses and organisations.  The Alzheimer’s Society co-ordinate the dementia friendly communities programme which encourages everyone to share responsibility for ensuring that people living with dementia feel understood, valued and able to contribute to their community.  We aim to support the community in Corby including businesses, theatres etc to become dementia friendly.

The Care Advice Centre is also a committee member of the newly formed CoPPA East Midlands group.  This is a multi-disciplinary organisation whose aims are to consolidate and develop good practice in the Court of Protection and in the implementation of the Mental Capacity Act 2005.  We are currently arranging our launch event, so look out for more details!

If you require support or advice, or would like us to attend your meeting group, please contact us on 07764480565.

Social Care - the Under Dog of the Welfare State

I have been an employee of a local authority for the past 13 years and yesterday was my last day.  I have worked at this local authority since I qualified with a Masters in Social Work in 2006 and I have certainly grown and developed as a professional during those years.  I was the senior practitioner within the team, supporting others and managing the day to day running of the service.  I am also a Practice Educator so have the honour of working with students on their placements.  I have also seen a lot of changes during this time, which is to be expected within local government services.

Last year the NHS celebrated their 70^th birthday.  There was a lot of press coverage around this event and celebrations across the service.  The NHS is a great provision which we should all be proud of.  However, the NHS was born out of the National Health Service Act 1946 and Social Care from the National Assistance Act 1948.  Both pieces of legislation came as an outcome of the Beveridge Report presented to parliament in November 1942 by Sir William Beveridge.  This report was influential in the founding of the welfare state.

In 2018 there was no national celebration of the work that local authorities provide within social care departments.  Too often social care is seen as the underdog.  They are alone remembered for the complex cases where unfortunately serious case reviews are required.  We do not celebrate or publicise the amazing work that social workers do daily to ensure the well-being of our clients.  Social care is under the same pressures as the NHS to continue to provide a high standard of service whilst having budgets cut and within adult care, an increasing aging population.  Within my 13 years practicing within local authority social care, I have seen excellent examples of person-centred practice and practitioners going that extra mile to support families.  The social care sector should certainly be celebrated for the role they have within our communities and the positive impact they have on people’s lives.

We currently await the Social Care Green Paper and the changes that this will bring.  But with the changes in legislation and local processes, within that system are experienced practitioners who will continue to support the most vulnerable in our communities.

Lasting Powers of Attorney - Common Misconceptions

A few years ago my parents, both now in their 70s, made their Lasting Powers of Attorneys (LPA) after me explaining the benefits of doing so to them.  Figures show that there are record numbers of people making their LPAs, since 2013 the use of LPAs has tripled.  There were 800,400 registered LPA in 2019 compared to 273,583 recorded in 2013.  However, there are still many misconceptions around this subject. 

75% of people think that their partners or close family members can automatically make decisions for them if they’re not able to.  As next of kin, many people expect that making medical decisions or future planning for loved ones is straightforward.  Unfortunately, this is not true.  Only a LPA gives you the legal ability to give those you trust the power to make decisions on your behalf should you lose mental capacity.

LPAs allow individuals to appoint a person (attorney) they know and trust to act on their behalf in the case of loss of mental capacity.  Failure to make a LPA could result in an individual’s assets being frozen for an extended period or decision regarding welfare being made by adult social care.  There are two types of Lasting Power of Attorney:

• ·        Property and finances – this gives a person authority to manage an individual’s property and finances should they lose mental capacity.  This includes matters such as managing bank accounts, paying bills, collecting benefits, managing mortgages or selling your home.

• ·        Health and welfare – this gives a person authority to make decisions on behalf of an individual regarding their health or social care needs, should they lose mental capacity.  This includes matters such as your daily routine, medical care, choice of care home, and whether or not to have life-sustaining treatment.

Another common misconception is that it is only older people who should be considering making a LPA.  I, like the national figures, am one of the younger generations who had not made a LPA.  Despite daily advising others to do so!  A lot of my work as an Independent Social Worker involves supporting people to make their LPA or completing capacity assessments to pass to the court of protection to appoint a deputy for those who have lost capacity to make this decision. 

I finally got around to making my LPAs over the Easter weekend when I was seeing my sisters who I had asked to be my replacement attorneys.  Other relatives were also present, all aged between 20-40years, none of whom had heard of LPAs or why they would benefit from making one.  We all know that we should write a will, but too few of us know we should also consider making a LPA.

The Office of Public Guardian has recently launched the ‘your voice, your decision’ campaign to raise awareness within these generations and counter some of the common misconceptions around them.  It is not only older generations that need this security of making a LPA.  I work with many people in the unfortunate situations of suffering loss of mental capacity following head injuries as a result of road traffic accidents.  This is not something anyone envisages happening to them.  By making a LPA it puts you in control of who will make these decisions for you should you lose capacity.

The government has been campaigning to raise the profile of LPAs.  In 2017, they reduced the cost from £110 to £82.  It is worth noting that this cost is significantly lower than the fee you are required to pay if you have lost capacity and apply to the court of protection to be appointed as a deputy for a loved one. 

If you require further advice on this subject, require a Professional Certificate Provider or a mental capacity assessment for an application to the Court of Protection, please do call the Care Advice Centre on 07764480565.

Hospital Discharges

I spent last weekend in hospital with my mother when she collapsed and went unconscious in our local supermarket.  She had a pacemaker fitted ten days ago.  We all expected that she would not have any more of these episodes once she had undergone the surgery…so what went wrong?

This event made me think about the experiences my clients have when their loved ones are admitted to hospital.

Having a family member in hospital can be a daunting, scary and confusing experience.  It is often difficult to get information from the busy hospital staff.   Finding out if they have received input from the different medical teams and therapists can be a battle.

If your loved one requires care and support to enable a safe discharge back home or to a new placement like a residential home, finding the right information and understanding the process can be difficult.  What equipment will be needed?  Will my medications have changed? What support will I require?  How much will the support cost?  How do I find a care agency? Do I need to look for a residential home, dementia registered home, nursing home or specialist setting?  Am I receiving the right benefits? Am I eligible for NHS Continuing Healthcare?

The Care Advice Centre are Independent Social Workers with years of experience working within adult social care and supporting hospital discharges.  We can help you through this difficult and confusing time.  Please contact us on 07764480565 if you require support.

The Mental Capacity Act and Deprivation of Liberty Safeguards

The primary purpose of the Mental Capacity Act (2005) is to promote and safeguard decision making within a legal framework.  It does this by empowering people to make decisions for themselves wherever possible.  It also protects people who lack capacity by providing a framework that places the person at the heart of the decision-making process.    The Act introduced five statutory principles which underpin all decisions taken when considering a person’s capacity:

·         A person must be assumed to have capacity unless it is established that he lacks capacity

·         A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success

·         A person is not to be treated as unable to make a decision merely because he makes an unwise decision

·         An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests

·         Before the act is done, or decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

In order to decide whether an individual has the capacity to make a particular decision you must first establish if a person has an impairment of or disturbance in the functioning of a person’s mind or brain.  If so, is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision.   A person is deemed unable to make a decision for himself if he is unable to:

·         To understand the information relevant to the decision

·         To retain that information

·         To use or weigh that information as part of the process of making the decision, or

·         To communicate his decision

The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person’s best interests.  If these restrictions deprive a person of their liberty then a Deprivation of Liberty authorisation must be applied for.  The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital.  In other settings the Court of Protection can authorise a deprivation of liberty.  It is the responsibility of the care home to apply for a standard authorisation.

If you require any help and support in this area please do contact the Care Advice Centre on 07764480565.

Navigating the Funding Maze

More people face paying the full price for their residential care after the government opted to freeze charging thresholds for a ninth year in a row.  The upper and lower capital limits, which determine who must pay the full cost of their care and how much others should pay from their assets, will remain at the same level in 2019-20 as they have done since 2010-11.  The lower and upper capital limits will remain at £14,250 and £23,250 respectively in 2019-2020.

Residential Care

Individuals with less than £14,250 in assets (in most cases, including any property) do not have to pay for their residential care from their assets.  Residential care fees may be paid for by the local authority, though individuals must contribute to this from their income (including state benefits but excluding earnings).  Individuals are left with a weekly personal expenses allowance of £24.90 per week.

If an individual has assets of over £23,250, the upper capital limit, they must pay the full cost of their residential care.

Community Care Services

Individuals with over £14,250 will be assessed to contribute towards their care and support.  A fairer charging assessment will be completed by the Local Authority to calculate this contribution.  For individuals with over £23,250 they will have to pay the full cost of their care.

Individuals with over the capital threshold are termed ‘self funders’ and Local Authorities often do not have the capacity to assess their needs and find suitable care and support services to meet these needs.

The Care Advice Centre is an Independent Social Work consultancy service.  We are experienced social workers who can assist you to navigate the complex care system.  We can provide independent assessments of need and help you to find suitable care and support to meet your needs.

Services offered by the Care Advice Centre:

·         Advising, assessing for and arranging care and support in the community or residential placements

·         Support with hospital discharges

·         Support with hospital discharges under the Mental Health Act and support at tribunals

·         Support with benefit applications

·         Review of care and support needs

·         Visiting services

·         Certificate providers for Lasting Powers of Attorney

·         COP3 and mental capacity assessments

·         Applications for NHS and Continuing Healthcare and support with appeals

·         Case management

·         Expert witness reports

Please contact us on 07764480565 to discuss any of our services.

The Care Advice Centre - who we are and what we do!

As we start the new year, just a quick reminder about who we are and what we do.

The Care Advice Centre was established in 2011 by qualified social worker Aleisha White.  In 2018 Anna Callow joined the business as it expanded due to the growing need for Care and Advice services.

Anna qualified with a Masters in Social Work in 2006 and has worked within Local Authority Adult Teams since this time, being promoted to Senior Practitioner.  Anna is also a Practice Educator for trainee Social Workers.

As Independent Social Workers (ISW) we have the knowledge and skills to support people who require our expertise within the care sector.  Choosing an ISW with this level of experience is crucial to ensuring competent advice and assessments.

Some of our services include:
• Advising, assessing for an arranging care and support in the community or residential placements
• Support with benefit applications
• Certificate providers for LPA
• COP3 and mental capacity assessments
• Applications for NHS and Continuing Healthcare and support with appeals
• Case management
• Expert witness

If we can be of help to you please contact us on 07764480565.

Choosing the Right Independent Social Worker

Choosing the right Independent Social Worker

There are new Independent Social Worker agencies popping up regularly, but how do you know which one to use?  It is essential that you take time to consider this decision and choose the right person.

At the Care Advice Centre, we have over 20 years’ experience practicing within adult social care.  All practitioners have worked within Local Authority adult’s teams so have a good understanding of the care and support system which can be complex and difficult to navigate.  Independent Social Worker, Anna Callow has gained a senior level of practitioner within Local Authority teams and within this role managed and supervised a team of social workers.  Anna is also a qualified practice educator – supporting trainee social workers through their practice placements.  This role involves teaching the students the core values and ethics of social work as well as the legislation to which we practice and the theories that guide us.  All trainee social workers must meet the Professional Capabilities Framework (PCF) and as a Practice Educator, Anna guides them through attaining these standards.  The PCF are hosted by the British Association of Social Workers, which all Independent Social Workers at the Care Advice Centre are registered with.

The Care Advice Centre is an affiliated member of the Society of Later Life Advisors, a not for profit organisations that provides advise regarding financial products and services to the later life market.

All Social Workers must register with the Health and Care Professions Council (HCPC) and their registration can be checked online.  To practice as a social worker, you must complete Continuing Professional Development (CPD) which ties in with registration to the HCPC.  Workers are audited randomly by the HCPC to ensure they are completing their CPD to enhance their practice with clients.

The Care Advice Centre is a friendly, approachable team of professionals providing experienced support and advice.  We provide a flexible service to meet the client's needs.  The Care Advice Centre offer a 7-day completion of COP3 forms from day of instruction.  We aim to complete all other instructions within a 7-14 day timescale.  We appreciate how important it is to receive a quick response.

Please call the Care Advice Centre to have a chat regarding our services on 07764480565.