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Have you been coerced into paying unlawful care home top-up fees?

‘Bill Jones’ has been a resident in a care home for several years and has now become eligible for NHS Continuing Healthcare Funding. That is great news. Having sold his home to pay for his care out of private means at £1,500 per week, he will now be entitled to a free package of care provided by the NHS for his assessed healthcare and social care needs, including the cost of his accommodation at the care home.

According to the NHS well-established maxim set out in paragraph 180 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care –  “NHS care is free at the point of delivery” (ie when you need it) – so all Bill’s assessed care needs should be met in full by his NHS Continuing Healthcare Funded package of care – free of charge and at no cost to him – regardless of the care setting and irrespective of his wealth and means.

Paragraph 180 continues:

“The funding provided by CCGs [Clinical Commissioning Groups] in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible for individuals to be asked to make any payments towards meeting their assessed needs.

Why is the care home charging me additional fees?

Top-up fees are usually charged when the individual needing care or their family have specifically requested more expensive accommodation.

However, as above, a care home is not permitted to charge individuals anything towards the cost of their assessed healthcare needs just because the care home costs more than the CCG is willing to pay. To do so is unlawful and entirely contrary to the ethos of the National Framework.

Care homes can, however, lawfully charge for hotel-style luxuries or lifestyle choices, personal preferences or wants. Commonly, these lifestyle preferences might be where an individual would like a larger room (or one with better facilities or a better view) which is not related to their healthcare needs.

Therefore, it is important that you understand the basis of any proposed top-up fee and check to see if it is for assessed healthcare needs or merely personal choices. The former is unlawful, the latter is not.

So what happens when NHS Continuing Healthcare Funding is awarded?

In Bill’s case, the care home fees are likely to remain the same at £1,500, but now his local Clinical Commissioning Group (CCG) will take over responsibility for payment instead. That is what should happen in theory, but may not happen in practice. You may be caught between the care home and the CCG. Read on…

In our scenario, the CCG will usually enter into a contract with the care home to pay for Bill’s assessed NHS Continuing Healthcare package, and we would expect the contract to make it expressly clear that the care home is not allowed (ie unlawful) to charge a top-up fee if the cost is more than the CCG are willing to pay.

Having said that, and somewhat contradictory, it is quite common that CCGs will say that they are only prepared to pay a fixed rate (‘bed rate’) for a care home in their area regardless of the individual’s assessed healthcare needs – and that sum can often be much lower than the actual cost charged by the care home.

So where do you stand?

In Bill’s case, using round figures for ease, let’s say that the CCG will only pay a fixed rate of £1,000 towards the cost of his assessed care needs rather than the full £1,500 – leaving him to pay the balance due of £500 – ie ‘top-up’ the shortfall. That is contradictory to the National Framework (and perhaps the CCG’s contract) and is unlawful. After all, isn’t the whole point of NHS Continuing Healthcare Funding that it should be sufficient to meet all Bill’s assessed healthcare needs, not just a proportion of them?

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Supposing Bill has more challenging, complex, intense and unpredictable needs that require far more input, and the £1,000 isn’t sufficient for his daily care needs. Just because the CCG say that is their ‘standard’ rate for that care home, doesn’t make it right. The paid care package should be based on the individual’s particular assessed healthcare needs and not a ‘one size fits all’ scenario. If Bill’s assessed needs as a resident in that home costs £1,500, shouldn’t the CCG should pay for all of it in accordance with his care plan?

In practice, to get around the issue, the CCG or the care home may suggest an alternative solution is to move Bill 7 miles away down the road to a cheaper care home within the CCG’s £1,000 budget. In that way, all his care fees are paid in full and so he won’t have to pay anything extra – ie avoid paying a top-up fee. But is that reasonable?

That move is likely to have a detrimental effect on both Bill and his relatives. Not only could it mean moving a frail and vulnerable elderly gentleman to new and unfamiliar surroundings, which is both unsettling and disorientating and provoke more challenging behaviours, but it can also directly impact on his family. This heart-wrenching move, plus significantly extended travelling time to a more distant and inconvenient location, could mean less frequent daily/weekly visits, and greater worry and anxiety as to his well-being. A common scenario  that may sound too familiar to many readers.

The NHS website https://www.nhs.uk/conditions/social-care-and-support-guide/money-work-and-benefits/nhs-continuing-healthcare/, helpfully says, “If there’s evidence that a move is likely to have a detrimental effect on your relative’s health or wellbeing, discuss this with the CCG. It will take your concerns into account when considering the most appropriate arrangements.”

Paragraphs 283 to 287 of the National Framework also provide some useful guidance as to higher care cost packages. Where the care home rate is higher than the usual rate the CCG will ordinarily pay, they should look at the matter sensitively and liaise closely with the individual and their family or representatives, and consider:

“if there are reasons why they should meet the full cost of the existing care package, notwithstanding that it is at a higher rate. This could include that the frailty, mental health needs or other relevant needs of the individual mean that a move to other accommodation could involve significant risk to their health and well-being.”

“…. whether the cost is reasonable, taking into account the market rates in the locality of the placement. They should also consider whether there are other circumstances that make it reasonable to fund the higher rate. Examples might include: where the location of the placement is close to family members who play an active role in the life of the individual, or where the individual has lived there for many years and it would be significantly detrimental to the individual to move them.”

What happens next?

Upon being found eligible for NHS Continuing Healthcare Funding, the care home will probably want to meet with the family to enter into a new contract to pay the care home fees. Part of the fees will be met by the CCG – in Bill’s case £1,000 – but you will be asked to sign your agreement to pay the ‘top-up’. The top-up may not be explained to you clearly or even be hidden in the contract or described as something else to disguise its true (unlawful) identity. The care home should be completely transparent in its dealings with you. But the dilemma is that the proposed top-up fees are unlawful, and yet you are knowingly being presented with a legally binding contract to sign.

Don’t forget that care homes are running commercial enterprises, and if you can’t or won’t pay, then the alternative is to find other cheaper accommodation. It is far easier for them to ask the family, a vulnerable target with means to pay the top-up fee, than it is to approach the CCG.

Some families tell us that their care home has issue a veiled or implied threat that, unless they sign the contract, they will not be able to keep their relative in the care home and they will be put out on the street. Callous and uncaring? Duress and exploiting a vulnerable position? Unreasonable behaviour? The answer to all three questions is ‘yes’. We have even heard from one family who have been ‘threatened’ with their relative’s eviction even in these most challenging times where coronavirus is rife and care homes are not admitting new residents.

This now becomes a hard choice – flee or fight?

Pay the unlawful top-up fees and have peace of mind that your relative is safe and well-cared for in a home that is suitable for their needs and close to you; or risk the upheaval of moving them to a new care home, with the stress, anxiety and challenges that will present (assuming you can indeed find alternative accommodation!).

Some will go ‘quietly’ and flee, and rather than rock the boat, reluctantly agree to pay the top-up fee as they feel they have no choice despite being coerced into paying. The alternative is to fight and make a fuss, stand your ground and risk confrontation with the care home (and worry about the potentially negative effect this may have on your relative’s care at the home).

For families in this predicament it can be a tough decision and trade-off.

Be aware of these 5 points:

1. Top-up fees are the exception – not the general rule.
2. Top up fees should always involve the informed consent of all the parties.
3. Involve a written agreement where the arrangement should be revised regularly (i.e. annually).
4. Top-up fees are voluntary and must always be optional, affordable and transparent.
5. They should only be charged if a person is receiving a genuine upgrade in the care home’s services.

Our top 10 tips:

1. Have a conversation with the CCG and advise them that the cost of care is greater than the care package of assessed care in place and it will need to be increased to meet their needs.
2. Point out the care home are proposing to charge an unlawful top-up fee and ask what are they going to do about it?
3. If you want to dispute a decision to avoid having to pay higher-cost accommodation, you should do this via the NHS complaints process.
4. Ask the CCG to see a copy of the contract between them and the care home to check what it says about charging top-up fees!
5. Remember to quote paragraph 180 of the National Framework – see above.
6. Argue that your relative is not getting any lifestyle or hotel-style luxuries and is in a standard room – so the assessed care package should meet all the care home fees in full.
7. Speak to the care home and point out that your relative has been assessed and found eligible for NHS Continuing Healthcare Funding. If the care package being paid by the CCG is insufficient to pay for their care fees in full, it is incumbent upon the care home to approach the CCG on your behalf and argue that their funding needs increasing – and that the CCG, and not the family, should meet the shortfall.
8. Before you agree to any top-up fees you should reserve the right in writing to challenge them at a later date, and write that you are signing under duress.
9. If seeking to claim back top-up fees retrospectively, then beware that there are time limits that apply. This is a very specialised area where we strongly recommend you seek legal advice. Visit our one-to-one page for more information.
10. Above all – don’t take ‘no’ for an answer – be persistent.

In conclusion:

Remember that if you do receive NHS Continuing Healthcare funding, this cannot be topped up as it is unlawful – and no one should ask you to do so.

For additional reading on the subject, read our earlier blogs:

Are You Paying Top-Up Fees Unnecessarily?

TOP-UP FEES – Unfair Care Home Practices Now Face Government Sanctions

Should you be paying care fees?

What’s your experience with top-up fees?

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How To Avoid Selling Your Home To Pay For Care…

Over the years the press has been full of heart-rending stories of families forced to sell their relative’s home to pay for care. Some have done so quite needlessly, unaware of the options available in terms of funding their relative’s care. This article tells you how to avoid these mistakes.

Many people automatically assume that they’ll have to sell their house to pay for long-term care. However, that’s not necessarily the case.

There’s a lot of misinformation circulating about this issue, and it causes a great deal of confusion and distress for families.

When the time comes for a relative to move into a care home, the first question that comes to mind is how will their care be funded? Sometimes, the need to place a relative into a care home is foreseeable as you watch them become more frail over a period of time while their care needs become more challenging. However, quite often, the need to find a care home happens unexpectedly, perhaps following hospital admission after a sudden stroke, accident or fall. The shift in circumstances or care needs, can see an individual go from living (independently) in their own home to requiring round-the-clock, 24 hour care. We recommend reading our book “How To Choose a Care Home”.

Being a resident in a care home comes with a cost.

Many people assume that if you have some savings or you own a property, you are expected to pay for your own care. This is not necessarily the case.

There are two types of nursing care funding:

  1. Fully-funded NHS care (NHS Continuing Healthcare) covers 100% of care fees and is paid by the NHS if your relative has a ‘Primary Health Need’. This means that their primary need for care is a health need – as opposed to a social care need. Social care is often described as ‘activities of daily living’, such as help with feeding, washing, hygiene and mobility.

If your relative doesn’t qualify for NHS Continuing Healthcare Funding, they should automatically be assessed for FNC.

  1. Funded Nursing Care (FNC) is a weekly allowance (currently £180.31) paid by the Clinical Commissioning Group directly to the care home, as a contribution towards the cost of your relative’s nursing care needs that are provided by a registered nurse, employed by the care home. For more information, read out blog: Don’t Miss Out On Funded Nursing Care!

If your relative is assessed as being ineligible for NHS Continuing Healthcare Funding and FNC, then they should be passed over to their Local Authority to be assessed for social care funding. Social care funding is means-tested (NHS Continuing Healthcare is not), so if your relative has over £23,250 in savings and capital, they will have to pay for their own care ie become ‘self-funding’ and have to meet the full cost of care themselves.

However, many of the families who contact us indicate that they have not received any accurate information about this from the health and social care authorities and are steered towards self-funding their care from the outset. NHS Continuing Healthcare is never mentioned.

If your relative has health needs, they should ALWAYS be assessed for NHS Continuing Healthcare BEFORE they’re assessed for FNC and means-tested social care.

For more information, read our blog: ‘Primary health need’ made simple – what does it really mean?

Here are some available funding options which you need to know:

1. Following discharge from hospital into a care home:

With effect from 1 September 2020, the Government (via the NHS) has put in place emergency funding to pay for the first 6 weeks of care. [This was reduced to 4 weeks from the 1 July 2021]. This period is designed to give families peace of mind whilst the NHS carry out an assessment of their care needs.

If an assessment for CHC is not done within this period, the NHS will have to make ongoing arrangements to fund the care fees until it is carried out and the outcome is notified to you.

Read our blog: Discharged from hospital to a care home? Is your relative getting their entitlement to 6 weeks’ free care?

2. Entitlement to NHS Continuing Healthcare Funding:

As above, if your relative has predominantly healthcare needs, the NHS should pay for all their care (100%) through NHS Continuing Healthcare Funding. We recommend you request an assessment to determine eligibility for this funding as soon as possible after your relative is settled into their care home.

3. Consider Independent Financial Advice:

You can take independent financial advice to protect your assets, such as an Asset Protection Trust or a care payment plan benefit policy that will pay the monthly care home fees. However, financial advice comes at a cost, and we anticipate that most IFAs will not have come across the availability of NHS Continuing Healthcare Funding. No one can say whether an individual has to pay for their care until they’ve had an assessment to determine their eligibility for NHS Continuing Healthcare. So, bear this in mind before parting with funds and commission to an IFA.

4. Entering into a Deferred Payment Agreement (DPA):

If your relative is not eligible for NHS Continuing Healthcare Funding and is required by their Local Authority to contribute to the cost of their care, consider entering into a Deferred Payment Agreement (DPA) with them.

A DPA is an arrangement with the Local Authority whereby you can use the value of your property/home as security to defer paying long-term care fees.

The principal aim of the DPA is to stop individuals from being forced to sell their home to pay for their care during their lifetime.

In essence, what happens is that the LA will enter into an agreement with your relative (or their representative) and take over payment of the care home fees on their behalf in return for repayment at a later date. Think of it as a bridging loan or debt that is deferred. It still has to be repaid and is not written off, just postponed.

Repayment of the loan under the DPA is typically made either upon your relative’s death or when their home is eventually sold.

To protect their loan, the Local Authority will usually insist on taking a first legal charge on the property to ensure that there is adequate security out of the sale proceeds to recoup the care fees they’ve paid to the care home.

They may insist on getting an updated valuation survey as to the value of your relative’s property to ensure that the DPA is commercially viable. You may be expected to pay for this separately or as part of the administration charges.

The value of the charge is typically secured at around 70% to 80% of the value of the home. This margin is intended to allow for fluctuations in market value, payment of accruing interest, increasing cost of care, whilst hopefully, also giving the family some headroom to pay any expenses out of the sale proceeds and be left with a little equity balance. After all, the DPA has to be commercially viable for the Local Authority as it is sustainable for the family, if it is to work and meet the future (rising) cost of care.

In addition, Local Authorities can charge administrative and legal fees to cover the cost of setting up the DPA and the loan can accrue additional interest (capped by the Care Act 2014 at the national maximum interest rate which changes twice a year).

We strongly recommend that you read the DPA very carefully to make sure you understand your responsibilities and liability that you are taking on and your obligations to repay the loan promptly.

Tip: DPAs can be a lot of information to take in, so if in doubt, it is always best to seek legal advice.

Tip: It’s a good idea to check with any mortgage or loan company with an existing charge on your relative’s property first to make sure that they are comfortable with the Local Authority placing a charge on the property.

What happens next?

Once the DPA is established, the Local Authority will take over funding of the care home fees during the first 12 weeks of their care home placement.

During this time, the value of your relative’s property should be disregarded in any means-tested assessment. This is called the  ‘12-Week Property Disregard’ and is a period of grace to sort out their financial affairs and consider the options of paying for care.

If your relative went into the care home on a temporary or short-term basis, the12-Week Property Disregard only starts from the date of their permanent placement.

Beware: If your relative disposes of their home within this 12-Week Property Disregard period, any protection ceases to take immediate effect. That means, any proceeds of sale will be considered as fair game and included for means-testing by the Local Authority at the point of receipt.

The DPA then kicks in 12 weeks after your relative has been in a care home.

Are you eligible for a DPA?

To be eligible for the DPA scheme, there are several criteria that have to be met:

  • Your relative’s savings and capital must be less than £23,250 (currently the upper limit)
  • They have no other funds available with which to pay for care
  • They should be a homeowner (or be able to offer another asset that can be used as security instead)
  • There should be no one else living in the property who needs to stay there, for example, a spouse, partner, dependent child under age 16, relative aged over 60, or a young relative who is incapacitated
  • DPAs are only available for long-term stays (short term or temporary stays in care are not covered)

However, the Local Authority do have some discretion to offer a DPA to those who do not necessarily meet these criteria.

Ending the DPA

The DPA can come to an end in the following circumstances:

  1. Repaying the full amount due either during your relative’s lifetime; or
  2. When the property (or other form of security) is sold and the Local Authority is repaid; or
  3. When the agreement ends naturally upon their death and the amount is repaid to the Local Authority from their estate. When the home is sold on death, your relative’s executors (appointed under their Will) will be responsible for repaying the Local Authority the amount due under the DPA (plus any interest accrued, administrative and legal costs etc.), either, on the date the property is sold, or 90 days after death, whichever is the sooner. This timescale can be extended at the discretion of the Local Authority.

The Local Authority can take legal action after 90 days post-death to recover all monies due to them under the DPA. So, if you foresee any difficulties in complying with the agreement or making repayment, it is advisable to address them with the Local Authority as soon as possible, as late repayment can result in additional interest accruing, administrative and legal costs, until the debt is settled.

Some advantages of a DPA

There are, of course, some obvious advantages of entering into a DPA with the Local Authority:

  • A DPA gives your relative (or their representative) the choice as to whether they want to sell their home and how they want to pay for their care
  • Primarily, your relative doesn’t have to part with cash immediately, or liquidate investment policies, bank accounts and savings
  • It can help buy time and delay the need to sell your relative’s home
  • It gives a period of respite whilst your relative transitions into their new surroundings
  • It gives peace of mind and flexibility, so that you can choose when to repay the debt to the Local Authority
  • The debt is deferred (hence ‘Deferred Payment Agreement’) and pushed down the line to give some breathing space and sort out finances
  • It usually only attaches to the home. So, if its value increases, then your relative will be left with a greater surplus from the eventual sale proceeds
  • You can still rent the property and continue to claim certain benefits eg Attendance Allowance, Disability Living Allowance (care component), and Personal Independence Payment (daily living component)

Disadvantages of a DPA

There are several, but the main downside is that you will still have to keep up the maintenance and insurance on your relative’s home and pay any existing mortgages.

If the value drops by the time you come to sell the property, there will be less equity left after you’ve paid back the Local Authority’s loan, and worse, there could be a shortfall.

You are incurring interest and other administrative and legal charges over the length of the loan, and tying up funds that perhaps could have been used for other purposes.

The DPA is a legal binding agreement, so read it carefully to ensure you can comply with its terms and any default penalty clauses.

Summary

Be sure to explore what’s right and what’s not before you start to use assets or savings to pay for care. There are other options available so, don’t be forced into selling your home unnecessarily to pay for care.

For additional reading around the subject, take a look at these blogs and find many more on our website:

Read this if your relative is about to be discharged into a care or nursing home

Placing a relative into care…

Will you be self-funding?

BBC Drama “Care”, “Shines A Spotlight On NHS Continuing Healthcare”.

Is your relative claiming their full entitlement to benefits?

How To Get The NHS To Pay For Care is an easy-to-follow, practical e-book that helps you cut through the confusion and claim what you’re entitled to.

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Denied access because you don’t have the necessary legal authority to act for your relative?

Denied access: If you are presenting a claim for NHS Continuing Healthcare Funding on behalf of a spouse, relative, friend or else representing an individual in a professional capacity, it is essential that you have the necessary legal authority to act.

Different legal authorities will be needed depending on whether the individual is alive and currently in care or going into care, or has passed away and you are making a retrospective claim on their behalf to recover care fees that were wrongly paid. In either situation you will need the appropriate legal standing to represent your relative. Just being related might not be enough.

What is a Lasting Power of Attorney?

For living relatives, you will need a Lasting Power of Attorney (‘LPA’).

If your relative has mental capacity, as ‘donor’, they can grant Lasting Power of Attorney to their appointed representative(s), known as their ‘attorney’, to act on their behalf and make decisions at a time when they can’t do so for themselves should they lose mental capacity. An attorney is usually someone the donor trusts to act in their best interests such as a spouse, child, parent or trusted professional adviser.

A Lasting Power of Attorney can be for:

(1) health and welfare decisions; and/or

(2) property and financial decisions

Having an LPA gives the donor peace of mind knowing that, should they suddenly lose mental capacity (e.g. after an accident or stroke etc.) all their personal wants, wishes and needs will be taken care of without delay, by someone they have specifically chosen to make decisions in their best interests.

However, once an individual has lost mental capacity, it is too late to make an LPA, and a representative will have to apply to the Court of Protection for a Deputyship Order whereby the Court will appoint a Deputy to make such decisions on their relative’s behalf instead. This process can be expensive and cause delays whilst vital health-related and financial decisions could be put on hold waiting for a Deputy to be appointed.

An LPA is only valid during the donor’s lifetime and lapses automatically upon death.

In short, creating an LPA puts you, as the donor, in control and gives legal authority to your chosen attorney to make critical health and financial decisions in the event that one day, you can’t.

For more information about LPAs, read our blog:

Essential: Have You Got A Power Of Attorney?

Self-defence – Protect yourself and make a Lasting Power of Attorney

https://www.gov.uk/government/collections/lasting-power-of-attorney-forms

Acting in Best Interests

However, if your relative has lost mental capacity and has not created a Lasting Power of Attorney, then a ‘decision-maker’ can be appointed to take responsibility for making necessary decisions on their behalf – acting in their ‘best interests’. The decision-maker could be a health professional and not a close family member.

The decision-maker should consult with all relevant parties who may be involved or have an interest in the decision process eg a spouse, parent or medical practitioner. But quite often, there can be tension, conflict and even arguments whilst emotions run high – especially if the decision-maker overrides or ignores what other family members think is in the best interests of their relative.
An LPA would avoid this situation and potential conflict.

For more information, read our blogs:

Do you need legal capacity to assist your relative’s claim for NHS funding? Arguing “BEST INTERESTS”.

Tackling consent: Keeping control if your relative lacks mental capacity

Acting under a Will

If your relative has passed away, their appointed representative(s) will have authority to act under the terms of their Will.

A Will is a legal document setting out what you (the ‘testator’) says should happen to your estate (e.g. your property, home, bank accounts, investments, savings, assets, possessions and personal belongings etc.) after you die.

A Will enables the testator to appoint chosen representatives (known as ‘Executors’) to automatically deal with their estate after death. Being an Executor carries enormous responsibility, so it is important that you choose people you trust and who are capable of carrying out this duty for you competently.

Duties and powers of the Executors can be specified in the Will, and they can be as wide or as narrow as the testator wants. Usually these powers of authority will  include things like collecting, valuing and distributing assets within the estate, paying any taxes and funeral expenses, and distributing gifts (‘legacies’) to people) they have specifically chosen to benefit from their estate (‘beneficiaries’) e.g. making gifts of money, jewellery, shares, cars, charity donations etc.

You can now easily see the advantages of making a Will. You specifically choose who you want to inherit your wealth, rather than leaving it to chance.

For more information about Wills read our blogs:

Is your Will up to date?

I have a will, so why do I need a Lasting Power of Attorney?

What is a Grant of Probate?

Depending on the type and value of the assets the deceased owned, before the appointed Executors can legally administer (ie deal with) the deceased’s estate and start to liquidate, sell or distribute assets, they must first apply to the Probate Registry (a court) for a Grant of Probate.

A Grant of Probate (‘Grant’) is legal confirmation from the court that the Will is valid and has been officially registered, and the Executors named in the Will are the only ones with authority to deal with the assets of the estate.

Once the Grant has been issued, it confers the legal right to the personal representatives named in the Grant to administer the estate. For example, the Grant gives the legal right to sell or transfer property belonging to the estate, such as the deceased’s house, contents and any other personal possessions; paying off debts, bills and taxes; liaise with banks and close accounts; cash-in savings and investments such as, stocks, shares and ISAs etc; pay any professional (legal and accountancy) fees – before distributing any balance in accordance with the wishes expressed in the Will.

If the deceased left assets in their sole name with a total value of more than £5,000 then the appointed Executors will usually need to obtain a Grant.

However, smaller estates valued up to £5,000 can usually be liquidated without going through Probate.

I have a Will so why do I need a Grant of Probate?

You don’t usually need to apply for a Grant of Probate if there is a valid Will and the assets are held jointly eg money in bank accounts, investments, land or property, as these items will automatically pass to the surviving joint owner(s) on death. So, for example, if a husband and wife jointly own their home, the house will automatically pass to the surviving spouse on the other’s death.

Whereas, if assets are held in the deceased’s sole name, such as an investment, then the Executors may need to get a Grant of Probate to have legal access to the investment and deal with it as necessary or cash it in.

Where to apply for the Grant?

Executors should apply to the local Probate Registry Office closest to where the death occurred. You can find the details by going to this link:

https://www.gov.uk/register-offices

You can also access the probate forms online here: https://www.gov.uk/government/publications/form-pa1p-apply-for-probate-the-deceased-had-a-will

What happens if there’s no Will?

If the individual died without leaving a Will, there is no automatic legal right granted to a chosen representative to administer their estate.

Instead, the next of kin, usually a surviving spouse (but not partner or civil partners), child, parent or sibling, can apply to the Probate Registry for a different type of Grant  – known as  ‘Letters of Administration’  – to enable them to legally administer the estate.

This can, of course, cause problems for example, if family members cannot agree which of them would be the best person to administer with the Estate. To avoid disputes and delays, it is therefore always advisable to make a Will.

When someone dies without having a valid Will, this is known as dying ‘Intestate’.

The prescribed Intestacy Rules will apply in this eventuality, and these provide for a specific order of beneficiaries who will be entitled to the estate. For further information, see our blog: Is your Will up to date?

If the Intestacy Rules come into play it could invariably mean that some relatives and other beneficiaries whom the deceased may have wanted to benefit from their estate, may not receive anything at all!

You can now appreciate why it is vital to make a Will if you want to ensure that your affairs are dealt with in an orderly manner and that specific people, organisations or charities you want to look after will benefit from your accumulated estate.

Beware! When applying for either Grant (with or without a Will), you will also need to send off an inheritance tax (IHT) form to the Probate Registry. If the estate is valued at less than the ‘nil rate band’ threshold (currently £325,000), you will be exempt from paying IHT. Any tax is payable before the Grant is issued. So, timing when lodging the application can be an important consideration as it may trigger a large tax bill which has to be paid upfront! We do not offer any tax advice as this is an area where we suggest you seek specialist legal advice.

Letters of Administration can also be issued (usually to a beneficiary) where there is a valid Will, but the Executors named in the Will do not apply for a Grant of Probate – perhaps because they do not want to act as Executor, are no longer capable of doing so, or have already passed away.

Can the CCG refuse to pay restitution for a successful retrospective claim without a Grant?

In theory, yes they can! CCGs can make life difficult here.

They have to protect themselves and make sure that before they release funds, the recipient has the appropriate authority (i.e. a Grant) to confirm their legal standing to accept funds on behalf of the estate.  Imagine the repercussions if the CCG paid restitution on a retrospective review claim to someone without proper legal entitlement!

Therefore, if you have a retrospective claim or appeal pending, you may decide to apply for the Grant in advance of the outcome decision to save time, and enable you to deal with the restitution monies immediately and without delay. The downside, of course, is that you may incur a tax liability and your relative’s NHS Continuing Healthcare retrospective case may not be successful! In most cases, however, the Executors will apply for the Grant shortly after death as often it will be needed to enable them to deal with other matters relating to the estate.

Do I need a Grant of Probate to issue court proceedings?

Again, the answer is ‘yes’.

In order to have legal standing in court and give instructions to your legal team, a Grant will be required confirming that you have the requisite authority and standing to act.

Summary

After reading this article the benefits of having an LPA and valid Will should be obvious, and if you don’t have either of these documents, go and take immediate action to remedy the situation. If you made a Will a long time ago, get it out and refresh your memory. Does it need updating? Do you still want the same Executors? Are there any other beneficiaries you would like to include (or even remove) from your Will?

Protect yourself and your assets and put suitable representatives of your personal choice in place to take care of you and your assets at a time when you no longer can.

Take professional advice, if needed, to create your LPA and Will, or check that your existing Will is valid and up to date.

Or, if you need help specialist help with your Grant get in touch via our 1-2-1 page.

For more information visit:

https://www.gov.uk/government/organisations/hm-revenue-customs/contact/probate-general-enquiries

Plus, look at these blogs:

Why you should consider making Lasting Power of Attorney or a Will

Lasting Power of Attorney: 4 ways to start the conversation.

 

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Don’t Miss Out On Funded Nursing Care!

Funded Nursing Care

Many people miss out on FNC – Funded Nursing Care – and yet it’s a tax-free, non means-tested benefit that is provided by the NHS for people living in a care home (registered to provide nursing care) or nursing home. FNC is a contribution to the cost of their nursing care provided by a registered nurse employed by the care/nursing home. The range of services provided by a registered nurse are quite wide and can include planning, supervising and monitoring nursing and healthcare tasks, as well, of course, as direct nursing care.

The most common question people ask us is how FNC is assessed – and it often surprises them to hear that it’s not actually assessed.

Instead, it’s awarded to people who have been turned down for NHS Continuing Healthcare funding (full funding), but who still need some degree of nursing care.

In other words, there must be a proper assessment for NHS Continuing Healthcare Funding FIRST, and it’s only once the outcome of that assessment is known that a decision is made about FNC. For more information about assessments, read the blogs below.

So, we’re talking about two different types of funding here:

  • NHS Continuing Healthcare (CHC) – is full funding and it covers 100% of the costs of receiving full-time care, whether at home or in a care home, hospice or other care facility. It covers 100% of care fees, including social care and the cost of accommodation – i.e. everything.
  • Funded Nursing Care (FNC) – is a weekly benefit paid by the local NHS Clinical Commissioning Group for people who need some nursing care, but who are deemed ineligible for full CHC Funding.

Don’t make the common mistake. NHS Continuing Healthcare and FNC are not the same thing.

When is FNC paid?

The only way anyone can decide whether your relative should receive FNC is if they first have a free assessment for NHS Continuing Healthcare. Their nursing needs should be assessed as part of their eligibility assessment for CHC.

If, having been assessed, they are not found eligible for CHC (free funded care), but still require the services of a registered nurse, then they should automatically be considered for FNC for their nursing needs whilst resident in their care/nursing home.

Remember: Paragraph 250 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care states that you MUST be assessed for NHS Continuing Healthcare first. Only after that should your relative be assessed for FNC – not the other way round.

Therefore, CCGs should never routinely ‘assess’ for FNC first, as a matter of course, instead of assessing for full CHC Funding. The result? Families are left unaware that their relative may in fact be eligible for full NHS funding (which could typically amount to many thousands of pounds a month), but is instead only receiving a small weekly allowance specifically towards the cost of their nursing care needs.

Tip: Don’t make the mistake of being pushed into talking about FNC unless and until your relative has first had their CHC assessment and been turned down!

For further reading around the assessment process:

When isn’t FNC applicable?

FNC is not paid if your relative has to go into hospital. (They may still have to pay for their care home placement in the meantime, though.)

FNC is not available if the person needing care is in their own home or is in an ordinary care home; instead, they must be in a care/nursing home registered to provide nursing care.

How is FNC paid?

FNC is a weekly sum paid directly by the NHS Clinical Commissioning Group to the care/nursing home and is a contribution to ‘reimburse’ them for the cost of any nursing care provided by their employed registered nurse for your relative’s care needs.

Depending on how the care home contract is written, it may lower the overall care fees paid by the individual. So, if you’re paying for your own care, and your fees are calculated to include all nursing care, your care fees should reduce once the NHS starts paying FNC. However, many people see no difference at all, even though the care home is obliged to show how FNC reduces the care fees. Transparency is paramount. Yet, some nursing homes may see this as a ‘windfall’.

If the contract is silent, they may well pocket the FNC payment received from the NHS, and in addition, still charge your relative full rates! It’s always worth questioning this with the care home.

Unfortunately, many families are unaware that their relative is in receipt of FNC, or if they are, don’t really understand what it is, and so don’t challenge what happens to the payments.

Our Tips:

  1. Look at the contract and the monthly invoices to see whether FNC is mentioned.
  2. Check to see how they have accounted for FNC and whether credit has been given for this weekly payment to reduce the fees payable.
  3. If necessary, speak to the Continuing Healthcare Department at your local NHS Clinical Commissioning Group.
  4. Also consider paragraph 256 of the National Framework, set out below:
  1. The Care home provider should set an overall fee level for the provision of care and accommodation. This should include any registered nursing care provided by them. Where a CCG assesses that the resident’s needs require the input of a registered nurse they will pay the NHS-funded Nursing Care payment (at the nationally agreed rate) direct to the care home, unless there is an agreement in place for this to be paid via a third party (e.g. a local authority). The balance of the fee will then be paid by the individual, their representative or the local authority unless other contracting arrangements have been agreed.

Read our helpful blog: Funded Nursing Care refunds – should your care fees reduce?

FNC rates in England

Prior to October 2007 there were three bands – low, medium and high. If you qualified for FNC before 1 October 2007 and continue to qualify in 2020/21, you will receive the higher rate of £253.02 per week in England.

But since 1st October 2007 there’s just one flat rate contribution now which has increased slowly, but steadily, over the years. Here are the recent annual FNC rates for England:

  • 1st April 2018/19: £158.16 a week
  • 1st April 2019/20: £180.31 (previously £165.56) a week
  • 1st April 2020/21: £92 per week

Scotland: £81* (2020/21): free personal care payment of £180 per week

Wales: £179.97 (2019/20) per week

Northern Ireland: £100 (2018/19) per week

How Long Does FNC last?

According to paragraph 253 of the National Framework, individuals who are in receipt of NHS-funded Nursing Care are entitled to continue to receive it whilst they are alive until it is no longer appropriate. For example:

(a) if your relative no longer lives in a care home (or one that provides registered nursing care); or

(b) lives in a care home but does not now need any level of nursing care from a registered nurse; or

(c) your relative’s healthcare needs have changed, and they have become entitled to fully funded free NHS Continuing Healthcare instead.

Tax and benefits

FNC is a tax-free benefit and is not means-tested. As above, it can also be withdrawn if the NHS decides you no longer need it.

FNC does not affect your entitlement to Attendance Allowance, however it’s always best to double check your payments as it has been known for government employees to confuse FNC with NHS Continuing Healthcare and, as a result, stop paying Attendance Allowance.

For more information, read our blog:

Is your relative claiming their full entitlement to benefits?

What should you do?

If your relative has nursing needs but is not receiving either of the above two types of funding:

  1. Make sure they are assessed for NHS Continuing Healthcare funding (full funding).
  2. If they’ve already been assessed for full funding, but turned down, ask the NHS Continuing Care Team why FNC has not been awarded.
  3. Ask the care home to give you a breakdown of the nursing element of care in your relative’s care plan to support your enquiry.

Remember: You should be assessed for NHS Continuing Healthcare first. Only after that should a decision be made about FNC – not the other way round.

And of course, if you believe the outcome of the NHS Continuing Healthcare assessment was wrong, you must appeal.

Read our blog: Know your rights – Appealing the CCG’s refusal to grant CHC funding.

For further reading about FNC, look at paragraphs 246 – 262 of the National Framework

Also take a look at these blogs:

What’s the difference between a care home and a nursing home?

Paying care home fees or paying for full-time care at home? You could be entitled to NHS Continuing Healthcare.

Things You Need To Check Before Your Relative Is Discharged From Hospital

Funding your relative’s care – who pays?

New to NHS Continuing Healthcare Funding? Here’s a guide to the basics you need to know…

Placing a relative into care

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Is your Will up to date?

A Will is one of the most important documents you can have.

A Will is a legal document that enables you to decide how your Estate – your property, assets, money and any personal belongings – will be distributed after you die.  It can have tax advantages, too, and moreover guarantees that your specific wishes and legacies will be carried out by your appointed representatives (known as ‘Executors’) in strict accordance with your stated wishes and instructions.

If you know you need full-time care and you don’t have a Will, we strongly recommend that you make one now.

Does your Will reflect your specific wishes?

If you already have a Will, make sure it’s up-to-date and that it says what you want it to say. Relationships and wealth can change over time, and what seemed right when you last made your Will may now need amending and updating.

For example, after you die, you may wish to:

  • benefit new members of the family eg children and grandchildren
  • include your favourite charities to ensure that the needy benefit, too
  • change (or add more) Executors to administer your Estate
  • add a Codicil to your Will – for example, to make provision for specific gifts of jewellery, shares or money to friends or family
  • nominate someone to act as a guardian for your children (if you die while your children are minors)
  • record your funeral wishes in your Will
  • provide for your pet(s)
  • give practical instruction and guidance for those loved ones left behind

Making a Will gives you control of your affairs and can provide for how your wealth and assets are to be distributed after death.

Mental capacity

To make changes to any Will, mental capacity is key. If your mental ability is impaired and you are no longer able to make decisions for yourself – and therefore no longer able to understand the implications of those decisions – you won’t be able to change your Will.

That’s why it’s vital to act now.

The transition between being able to make decisions or not is often swift, so it’s best to get your affairs in order right away.

Tax

It’s also advisable to check that you own your property and assets in a tax-efficient way. Take legal and financial advice on this, especially if you’re married or in a civil partnership.

The nil rate inheritance tax band for the first person to die can often be transferred to the other person – effectively doubling the inheritance tax threshold on the second person’s death. Always take advice!

Who inherits if I don’t have a Will?

In the absence of a (valid) Will, the Intestacy Rules apply, and your acquired personal belongings and assets will be distributed in a specific pecking order depending on those who survive you. The Intestacy Rules could, therefore, perhaps unwittingly benefit some family members whom you had not intended to benefit from your Estate to the detriment of others.

When there is no Will, your family will have to apply to the Court for a Grant of Probate in order to deal with your affairs. This can be time- consuming and cause delays whilst key decisions may be required.

Important: A surviving partner who wasn’t married or in a civil partnership with the deceased, has no automatic right to inherit.

Under the Intestacy Rules, the order of distribution of your Estate is as follows:

Where there is a spouse or civil partner:

Where a deceased dies leaving a spouse but no surviving children then the residuary estate is paid to their spouse absolutely.

If, however, the deceased dies leaving a spouse and surviving children then their residuary estate is divided as follows:

–   The surviving spouse will keep all the assets (including property), up to £270,000.00 (known as a ‘Statutory Legacy’) and all the personal possessions, whatever their value.

–   The surviving spouse will also receive an absolute interest in half of the remainder of the residuary estate; and

–   The other half is then divided equally between the surviving children (children include legally-adopted sons or daughters, but not stepchildren). If a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.

Where there is no spouse or civil partner:

  • If there is no spouse, then the Estate is shared equally between the children (children include legally-adopted sons or daughters, but not stepchildren). If a son or daughter has already died, their children (the grandchildren of the deceased) inherit in their place.
  • If there are no children, then the Estate is shared equally between the parents.
  • If there are no parents, the Estate is shared equally between the brothers or sisters.
  • If a brother or sister has already died, their children (nieces and nephews of the deceased) inherit in their place.
  • If there are no brothers and sisters, the Estate is shared equally between the half-brothers or half-sisters. If a half-brother or half-sister has already died, their children (nieces and nephews of the deceased) inherit in their place.
  • If there are no half brothers and sisters, the Estate is shared equally between the grandparent(s).
  • If there are no grandparents, the Estate is shared equally between the aunts or uncles. If an aunt or uncle has already died, their children (the cousins of the deceased) inherit in their place.
  • If there are no aunts and uncles, the Estate is shared equally between the half-aunts or half-uncles. If an aunt or uncle has already died, their children (the cousins of the deceased) inherit in their place.
  • If there are no half aunts and uncles, ownership of the whole Estate goes to the Crown.

For more information about the distribution of the Estate under the Intestacy Rules, visit the Government website: https://www.gov.uk/inherits-someone-dies-without-will

Take action now

Do it now, while you still can. It won’t make any difference to your life while you’re still alive, but it will make things much easier for those you leave behind and who will be grieving.

Asset Protection Trust

There are other ways that you can protect your assets, during your lifetime, too. In certain circumstances you can set up an Asset Protection Trust to ensure that your home and wealth are not taken into account by the Local Authority when assessing any means-tested financial contribution to your care fees. Such Trusts are perfectly legitimate and can be tailored to your specific circumstances and can include outright gifts to family members to ensure that they can enjoy the benefit during your lifetime rather than under your Will. By doing so, it also avoids family disputes, and you can gift your home, assets, jewellery, shares and so on, to family members you entrust and wish to see benefit whilst you are alive.

However, this is a complex area where we recommend you seek specific legal advice. Asset Protection Trusts can often be challenged by Local Authorities if they are seen as a deliberate deprivation of capital – ie seeking to put your assets out of reach in order to reduce your wealth and ‘beat’ the means-testing system. But setting up such a Trust far enough in advance can have significant (inheritance tax) benefits to the donor and, of course, benefit the recipient, too, whilst you are alive and derive pleasure from your gift.

I have a Lasting Power of Attorney so why do I need a Will?

Many people confuse a Lasting Power of Attorney (LPA) with a Will – or assume that because they have a Will, they automatically have some kind of power of attorney. Wrong!

An LPA is very different from a Will. In essence, by setting up a Lasting Power of Attorney, you give someone you trust the authority to make decisions and to act on your behalf and in your best interests. It protects your own interests while you’re still alive. Whereas a Will protects your beneficiaries’ interests after you’ve died.

A Lasting Power of Attorney is only effective while you’re still alive – up to the point where you die. The moment you die, the LPA ceases and your Will becomes relevant instead. There’s no overlap.

Read our blog: Self-defence – Protect yourself and make a Lasting Power of Attorney

5 Reasons why should you make a Will?

1. You keep control and can choose who will benefit from your Estate and inherit what they are entitled to in accordance with your pre-desired allocation.
2. You decide who will administer your affairs after your death and give them guidance and specific instructions as to your wishes.
3. You avoid the Intestacy Rules, which automatically determine who will benefit from your estate; avoids unnecessary family (or business-related) disputes and expensive legal challenges.
4. It is far more expedient to administer an Estate where there is a Will in place and decisions can be made more quickly.
5. It gives you certainty that your beneficiaries will inherit as intended and avoid any unintended consequences (eg a long-term unmarried partner missing out).

If you need help seek specialist legal advice – visit our one-to-one page

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Self-defence – Protect yourself and make a Lasting Power of Attorney

When you (the ‘donor’) give Lasting Power of Attorney (LPA) to someone you trust, they will be able to manage your affairs for you, should you become unable to do so.

Don’t wait until it’s too late! Take action now to protect your interests.

It’s never too soon to set one up – because you never know when you might need someone to help you in this way in the future. When that time comes, things often happen very quickly.

Think about the practicalities of who would look after your health and everyday finances in the event of a sudden loss of cognitive functioning, mental capacity or ability to communicate. Worse still, consider the prospect of a complete stranger making decisions about your money, your house or your health and wellbeing – including where you live – while your family is powerless to do anything to protect you. Unexpected falls, car accidents, illness, admissions to hospital, strokes, stress or traumatic events can happen in the blink of an eye. Consider who would act on your behalf or make appropriate decisions in your best interests, at a time when you can’t do it for yourself. If you’re still asking yourself why you need an LPA, these events are just a few examples of the kind of scenarios a Lasting Power of Attorney helps to prevent.

Setting up an LPA will give you peace of mind and security in the long-term, knowing that you have chosen someone to take responsibility for you and your affairs; knowing in advance that your expressed wishes, desires and preference relating to your health, home and money will all be looked after at a time when you are no longer in control and able to manage them for yourself.

In short, make sure you don’t let a stranger take control over you and your affairs.

Choose someone you trust

For obvious reasons, the person you choose as your attorney is usually a spouse, partner, relative, friend or someone in a professional capacity. It’s vital that it’s someone you trust. They don’t need a legal background to act as an attorney. If you choose someone in a professional capacity, bear in mind that they will charge a fee each time they act on your behalf.

Do it now!

There are two types of Lasting Power of Attorney (LPA):

  • Property and financial affairs
  • Health and welfare

Many people say that they’ll wait until they need one before setting one up. This is a BIG mistake. By the time you need one, it’s often too late! And, even if an LPA can still be set up, your hands will be tied – and you”ll be unable to protect your own interests – until the power can be processed and registered (usually several weeks or months later). In the meantime, key decisions are likely to be made for you by people who don’t know you, and which might not actually be in your best interests, or conflict with your personal preferences or religious practices.

Why take the risk?

Having an LPA set up and ready to use makes no difference to your day-to-day life now. But once you have set one up, it can be used the moment you need it, with no delays. This is vital. Do it now!

Another advantage of having an LPA in place, is that you don’t have to wait until you lose mental capacity for your attorney to act. With your permission, your attorney can act on an ad hoc basis, as and when instructed by you, and take responsibility for making certain specific decisions whether on a particular matter or for a limited time. For example, while you’re on holiday and need someone to manage your bank account, make certain financial transactions, speak to your doctor for you, obtain or share information on your behalf in your absence etc;

Mental capacity to make your LPA

You must be at least 18 years old and have mental capacity to make a Lasting Power of Attorney.

The test for mental capacity to make decisions is satisfied if you:

  • understand the information you need – for example, what the consequences will be
  • remember the information for long enough to make the decision
  • can weigh up the options and make a choice
  • communicate your decision in any way – for example, by blinking or squeezing a hand

Mental capacity can be assessed by your doctor or another medical professional. See the attached link to the Mental Capacity Act code of practice

It’s important to bear in mind that once you lack the mental capacity to make safe decisions for yourself, you can no longer set up an LPA. That’s why it’s vital to do it now. It’s easy to put it off, but we can’t stress the need to protect yourself for unknown future life events.

If you lose mental capacity and you haven’t appointed someone to be your attorney, one of your relatives or friends will have to apply to the Office of the Public Guardian.  The Court of Protection would then go through a process of appointing a Deputy to manage your affairs. However, this takes time and can be expensive, too. In the meantime, critical pending decisions over your health and/or finances may be delayed with disastrous consequences.

The Deputy could be a spouse, partner or member of your family or, if you don’t have any willing relatives, it could be a solicitor. In this case, your savings would be used to pay for their professional services, and this could be very expensive in the long-term.

It’s much better – and much kinder to your family – if you set up an LPA now, while you still can – rather than be beholden to the Court of Protection which could potentially appoint a Deputy who is not familiar with your lifestyle, wants or expressed desires.  So, to avoid this outcome, it is far better to be pro-active and make your LPA whilst you have mental capacity. Don’t forget that you can state in your LPA any particular wishes or restrictions or limit the powers and scope of what your appointed attorney can and can’t do.

If you miss this opportunity, the matter is out of your hands and will be beyond your control if the time comes.

Read our previous blogs on mental capacity:

Cognition and mental capacity – what’s the difference?

Mental Capacity Assessments – when should you have one?

Enduring Powers of Attorney (EPAs)

Enduring Powers of Attorney are worthy of a brief mention, too. EPAs preceded Lasting Powers of Attorney and still exist in circulation, although they are far less commonly seen now.

If made and signed before 1st October 2007, an EPA can still be used; but after this date, you have to make an LPA instead.

An EPA is still valid if it was made correctly ie if the person making the EPA (the ‘donor’) was at least 18 years old, wasn’t bankrupt (and still isn’t) and had the mental capacity at the time to make their own decisions when signing the EPA.

Like an LPA, the appointed attorney is responsible for helping the donor make decisions about managing their property and finances (eg: money and bills, bank and building society accounts, property and investments & pensions and benefits) whilst acting in their best interests at all times. Similarly, like an LPA, the donor could place restrictions on what their attorney can do and give guidance or instruction on how they want decisions to be made on their behalf.

The attorney can’t make a will on behalf of the donor but can apply to the Court of Protection for a ‘statutory will’ if the donor needs to make a will, but lacks capacity to do it themselves.

For more help on ‘best interests’ read our blog:

Do you need legal capacity to assist your relative’s claim for NHS funding? Arguing “BEST INTERESTS”.

Important to note:

LPAs (and EPAs) are only effective whilst the donor is alive and end automatically upon death – unless cancelled by the donor beforehand.

Responsibility for managing the donor’s affairs will pass over to their chosen Executors appointed under their Will. However, the lack of a (valid) Will can create a whole set of administrative problems and complex inheritance issues – perhaps benefitting relatives that you did not intend to inherit from you – plus, inevitable delays whilst the Executors apply to the Court for a Grant of Probate (giving the Executors legal authority to administer the deceased’s estate and deal with the assets including property, bank accounts, shares etc).

There are many advantages of a making a Will, such as: specifying who looks after your home, money, assets, investments and other financial affairs after your death; it enables you to make specific gifts to your beneficiaries (eg jewellery or other precious/sentimental items); make donations to charity; provide care for your pets; set out funeral arrangements and tax planning etc.

For additional reading:

I have a will, so why do I need a Lasting Power of Attorney?

Why you should consider making Lasting Power of Attorney or a Will

Practical: You’ll need an LPA to Pursue NHS Continuing Healthcare retrospective claims

If you are receiving full time care and you believe you’re being wrongly forced to pay for that care, you will almost certainly need someone to help you challenge that decision and pursue NHS Continuing Healthcare Funding to recover your care fees (see our one-to-one page). If the person helping you has a Lasting Power of Attorney, it makes it much easier, as they have official capacity to act and access your care home, GP and hospital records. Otherwise, a (family) representative will be acting in ‘best interests’ and may be overruled or ignored by the Clinical Commissioning Group and denied access to essential records. Therefore, it is far better to have an LPA in place as the overreaching authority, confirming your attorney’s legal status to act and make decisions on your behalf.

Note: It is particularly important to have an LPA if successful in making a retrospective claim to recover care fees, as the Clinical Commissioning Group can refuse to reimburse your relative without it. This can often cause much anxiety among families. Imagine having battled for years with the NHS and successfully recovered care fees – only to fall at the last hurdle – and for payment to be withheld (until a Deputyship Order is obtained).

Upon death, the Clinical Commissioning Group will require sight of the Grant of Probate instead (remember: the LPA lapses on death).

Summary:

Make your LPA now and put it away in the hope that you may never need it (just like taking out insurance). Job done. Don’t put it off any longer.

There is a fixed cost to creating your Property and financial affairs and Health and welfare LPAs (currently £82 each), but you can download the forms online and fill them in yourself, following the guidance: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney

But, if you need assistance, visit our one-to-one page for professional help or send an email to: enquiries@caretobedifferent.co.uk

You can also find out more from: https://www.gov.uk/lasting-power-attorney-duties

Useful contact details:

https://www.gov.uk/government/organisations/office-of-the-public-guardian.

Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH

Telephone: 0300 456 0300

customerservices@publicguardian.gov.uk

For further reading around the subject, look at these blogs:

Tackling consent: Keeping control if your relative lacks mental capacity

Lasting Power of Attorney: 4 ways to start the conversation.

Essential: Have You Got A Power Of Attorney?

Using legislation to safeguard your relative in care – Deprivation of Liberty Safeguards (DOLS)

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Is your relative claiming their full entitlement to benefits?

Even if you are in receipt of NHS Continuing Healthcare Funding, you may still be able to claim additional benefits from the Government.

Here’s a helpful summary of 14 extra benefits you may be entitled to claim. This is not intended to be an exhaustive list, but includes:

1. Attendance Allowance:

Attendance Allowance helps with extra costs if you have a disability severe enough to warrant additional care.

This is not means-tested.

However, note that, if receiving NHS Continuing Healthcare Funding, your Attendance Allowance will end after 28 days.

Attendance Allowance is paid weekly at 2 different rates and the amount is dependent on the level of care that you need because of your disability.

Rate Level of help you need
Lower rate – £58.70 Frequent help or constant supervision during the day, or supervision at night
Higher rate – £87.65 Help or supervision throughout both day and night, or if you’re terminally ill

You do not have to have someone caring for you in order to claim.

If you do have a carer, they could get Carer’s Allowance if you have substantial caring needs.

Read more about Attendance Allowance

2. Bereavement Allowance

You may be able to get a £2,000 Bereavement Payment if all of the following apply:

  • your husband, wife or civil partner died before 6 April 2017
  • you were 45 or over when your husband, wife or civil partner died
  • you’re under State Pension age
  • your late husband, wife or civil partner paid National Insurance contributions, or they died as a result of an industrial accident or disease

Read more about Bereavement Allowance

3. Bereavement Support Payment

You may be able to get Bereavement Support Payment if your spouse or civil partner died on or after 6 April 2017 and you were either:

  • under State Pension age
  • over State Pension age and your husband, wife or civil partner wasn’t entitled to a State Pension based on their own national insurance contributions

Additionally, your husband, wife or civil partner must have either:

  • paid enough National Insurance contributions
  • died because of an industrial accident or disease

Read more about Bereavement Payment

4. Carer’s Allowance

You could get £66.15 a week if you care for someone at least 35 hours a week and they get certain benefits.

You do not have to be related to, or live with, the person you care for.

You do not get paid extra if you care for more than one person.

Carer’s Allowance can affect the other benefits that you and the person you care for receive. You have to pay tax on it if your income is over the Personal Allowance.

Read more about Carer’s Allowance

5. Deferred Payment Arrangements

Instead of selling your home to pay for care, you may be able to negotiate a Deferred Payment Arrangement with your local authority; it means you keep hold of the property, the local authority pays your care fees for the time being, and those fees are repaid to the local authority once the house is eventually sold.

Read our blog: What contribution do I have to make towards my care costs, and when?

6. NHS-funded Nursing Care

If your relative has been unsuccessful in their application for NHS Continuing Healthcare Funding, they should automatically be considered for Funded Nursing Care (FNC) if they are living in a care home and need some element of nursing care from a registered nurse.

Read paragraphs 248 to 262 of the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care.

FNC is a weekly sum paid by the Clinical Commissioning Group directly to the care home, as a contribution towards the cost of your relative’s nursing care needs. FNC is currently paid at the national rate of £165.56 a week (2019/20), and is not assessed or means-tested, and is tax free.

Read our blog: Have you considered NHS-Funded Nursing Care (FNC)?

7. Industrial Injuries Disablement Benefit

You might get Industrial Injuries Disablement Benefit (IIDB) if you became ill or are disabled because of an accident or disease either:

  • at work
  • on an approved employment training scheme or course

The amount you may get depends on your individual circumstances.

Your carer could get Carer’s Allowance if you have substantial caring needs.

Read more about IIDB

8. Pension Credit

Pension Credit is an income-related benefit made up of 2 parts – Guarantee Credit and Savings Credit.

Guarantee Credit tops up your weekly income if it’s below £167.25 (for single people) or £255.25 (for couples). You may still be eligible if you have savings, a pension or your own home.

Savings Credit is an extra payment for people who saved some money towards their retirement, for example a pension.

You may not be eligible for Savings Credit if you reached State Pension age on or after 6 April 2016.

You do not pay tax on Pension Credit.

Read more about Pension Credit

9. Personal Independence Payment

Personal Independence Payment (PIP) can help you with some of the extra costs if you have a long-term ill-health or disability.

You could get between £23.20 and £148.85 a week if you’re aged 16 or over and have not reached State Pension age.

The amount you get depends on how your condition affects you, not the condition itself.

You’ll be assessed by a health professional to work out the level of help you can get. Your rate will be regularly reviewed to make sure you’re getting the right support.

Your carer could get Carer’s Allowance if you have substantial caring needs.

Read more about PIP

10. Warm Home Discount Scheme

If your name or your partner’s name is on your fuel bill, you could be eligible for this.

You could get £140 off your electricity bill for winter 2019 to 2020 under the Warm Home Discount Scheme.

The money is not paid to you – it’s a one-off discount on your electricity bill, between September and March.

You may be able to get the discount on your gas bill instead if your supplier provides you with both gas and electricity. Contact your supplier to find out.

The discount will not affect your Cold Weather Payment or Winter Fuel Payment.

Read more about Warm Home Discount Scheme

11. Winter Fuel Payment

If you were born on or before 5 April 1954 you could get between £100 and £300 to help you pay your heating bills. This is known as a ‘Winter Fuel Payment’.

You usually get a Winter Fuel Payment automatically if you are eligible and you get the State Pension or another social security benefit (not Housing Benefit, Council Tax Reduction, Child Benefit or Universal Credit).

If you’re eligible but do not get paid automatically, you will need to make a claim.

The deadline for claiming payments for winter 2019 to 2020 is 31 March 2020.

Most payments are made automatically between November and December. You should have received your money by 13 January 2020.

Any money you get will not affect your other benefits.

Read more about Winter Fuel Payment

12. Cold Weather Payment

You may get a Cold Weather Payment if you’re getting certain benefits or Support for Mortgage Interest.

You’ll get a payment if the average temperature in your area is recorded as, or forecast to be, zero degrees celsius or below over 7 consecutive days.

The Cold Weather Payment scheme runs from 1 November 2019 to 31 March 2020.

You’ll get £25 for each 7 day period of very cold weather between 1 November and 31 March.

Read more about Cold Weather Payment

13. The 12-Week Property Disregard

Remember that your local authority cannot take the value of your property into consideration as part of your assets for the first 12 weeks of your Care

Read our blog: What contribution do I have to make towards my care costs, and when?

14. Universal Credit

Universal Credit is a single monthly payment to help with your living costs.

  • It replaces 6 other benefits, namely: Child Tax Credit, Housing Benefit, Income Support, income-based Jobseeker’s Allowance (JSA), income-related Employment and Support Allowance (ESA) and Working Tax Credit

You may be able to get it if you’re on a low income or out of work, 18 or over, are under State Pension age (or your partner is), you and your partner have £16,000 or less in savings between you.

The number of children you have does not affect your eligibility for Universal Credit, but it may affect how much you get.

Standard allowance

Read more about Universal Credit

Additional information

Care To Be Different does not provide financial advice.

We strongly recommend you take professional and independent financial advice when making any decisions about Care Planning, tax and Benefits.

You may also find it helpful to browse the Department for Work and Pensions website and Gov.uk.

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Are You Paying Top-Up Fees Unnecessarily?

Paying top-up fees can cost families a fortune, but are they lawful? Are you paying more than you have to?

Here’s Tip no. 22 in our 27 top tips series on NHS Continuing Healthcare.

Top-up fees are complex area that is often misunderstood by both individuals and care homes alike. There is often much confusion as to whether top-up fees are ever lawful, and if so in what circumstances can care homes charge these fees.

Assessed clinical needs vs social or personal ‘wants and needs’

Top-up fees are usually associated with the additional costs of accommodation. Understanding the distinction between assessed clinical health needs and social needs is vital to determining whether a care home can legitimately charge top-up fees.

When can a care home charge a top-up fee?

The answer really depends upon the basis or purpose for which the top-up fees are being charged.  Essentially, you need to establish whether this additional cost (ie the top-up fee) is for the resident’s assessed core healthcare needs or is it for their social needs or ‘wants’? The former is unlawful, the latter is not.

In short, if an individual is already receiving NHS Continuing Healthcare Funding following clinical assessment – then the answer is that the care home shouldn’t lawfully be charging any extra top-up fees. That is the whole essence of NHS Continuing Healthcare Funding – it is supposed to be provided free at the point of when you need it and all related costs of additional clinical healthcare should be met in full by the NHS. Read below, paragraph 180 of the pending National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2018 (Revised) which you can quote to the care home!

“NHS care is free at the point of delivery. The funding provided by the CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible to for individuals to be asked to make any payments towards meeting their assessed needs”.

Therefore, the answer is that top-up fees should not be charged for clinical health needs where there is already a package in place for NHS Continuing Healthcare Funding. If the package isn’t sufficient, then ask for the care home to have it reviewed.

NOTE: If however, individuals who wish to supplement their existing NHS funded care package to meet their personal preferences, they can still of course do so, but at their own expense, (and provided that these preferences do not replace or conflict with elements of care funded by the NHS). So for example, if an individual wants hairdressing, beauty treatments, manicures, pedicures and other spa-type services –  then it is permissible for the care home to charge separately for these added ‘lifestyle’ services as they are a personal choice and unconnected with their assessed clinical healthcare needs.

Similarly, supposing the care home provides standard accommodation, but the individual chooses (or wants) to have a larger than standard room with a better view or private balcony, and enhanced facilities such as a kitchenette, en-suite bathroom etc. (i.e. related state of accommodation, rather than clinical health needs), then it may be lawful for the care home to charge a top-up fee for the additional ‘hotel-style’ facilities or services that extend beyond the person’s assessed care needs – even if NHS Continuing Healthcare Funding is in place. The top-up fee here doesn’t relate to the assessed healthcare need provided – but for a social care element – sometimes described as a ‘lifestyle’ choice, or more frequently referred to as the ‘luxuries of living’ as opposed to a clinical need for them. In such circumstances the care home can charge for a ‘personal want’ as it is unconnected to their NHS care package.

For further reading look at Practice Guidance Note 99 of the previous National Framework for NHS Continuing Healthcare 2012 and the helpful example set out at of an individual with challenging behaviours where the extra cost of accommodation is due to their assessed clinical needs, and not just because it would be nicer to have a bigger room (see Paragraph 99.2).

OUR TIP 1: You must clarify with the care home provider what is the basis for the proposed top-up charges.

OUR TIP 2: If the NHS Continuing Healthcare funded agreed package in place is not sufficient to pay for all the assessed individual’s clinical care needs, then you need to act.

Rather than the care home just getting away with charging you top-up fees because it suits them, get them to apply to the CCG on your behalf, and explain why the agreed NHS budget allocated for the individual is now insufficient to meet their increased (challenging) clinical health needs; it is for the care home to re-negotiate the budget with the CCG and apply for more funding if it is costing them more to care for the individual than budgeted for.

Remember: care is supposed to be free at the point of need – so the CCG should meet the reasonable cost of increased care needs – not you! So take action and push for your rights – it could save you a fortune in unnecessary top-up fees.

If,  however, the care is being already funded by the Local Authority, then the care home should ask the Local Authority to pay the for top up fees, not the family.

In the case of a private paying patient who does not have NHS Continuing Healthcare Funding in place, then I’m afraid if you want these hotel-style luxuries then you’ll have to pay for them.

For further information, why not look at The Care Act 2014, which provides:

  • Top up fees should always involve the informed consent of all the parties
  • involve a written agreement and that the arrangement should be revised regularly (i.e. annually).
  • Top up fees must always be optional, affordable and transparent.
  • They are not intended to cover any shortfall in Local Authority funding.
  • See also the NHS National Framework 2018 (paragraphs 270 – 278)

Finally, in conclusion: it is not permissible in law for the NHS commissioner to allow for a third party or an individual to contribute towards the NHS assessed (primary healthcare) care needs – including accommodation – which must be fully funded by the NHS commissioner including specifically, where a service user is eligible for funding under Continuing Healthcare legislation or Section 117 of the Mental Health Act.

Share your experience with top-up fees.

Tip no. 21: Appealing A CHC Funding Decision, Not To Grant Or To Withdraw Funding

Tip no. 23: Attending the Multi-Disciplinary Team meeting – some useful guidance

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People with dementia failed by Mental Capacity errors

Dementia Alzheimers Represents Alzheimer's Disease And Confusion

Lack of training for professionals in the Mental Capacity Act leaves people with dementia compromised

A survey carried out by the Alzheimer’s Society has found that many people with dementia are not properly consulted when decisions about them are made.

It also found that many people with dementia feel they are not properly supported in making decisions.

A lack of awareness and understanding of the Mental Capacity Act on the part of health and social professionals is partly to blame and leads to Mental Capacity errors. Not only is there a lack of understanding of what a Mental Capacity Assessment is, but may people seem to confuse the Mental Capacity Act with the Mental Health Act. The two things are not the same.

We heard recently from a family whose mother was in hospital. Prior to various meetings with the discharge team and with the NHS Continuing Healthcare assessment team, the son rightly questioned whether a Mental Capacity Assessment had been carried out.

The reply from the nurse was shocking: She said that that Mental Capacity Assessments don’t apply to people with dementia – and that for people with dementia the only thing that matters is an assessment of their financial means.

Even without the last part of her comment, it’s a shocking example of what goes on.

You can read more about the Alzheimer’s Society survey here, and you can read more here about Mental Capacity Assessments – and when they should be carried out.

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I have a will, so why do I need a Lasting Power of Attorney?

Do I need a Lasting Power of Attorney if I have a will?Many people confuse a Lasting Power of Attorney with a will – or assume that because they have a will they automatically have some kind of power of attorney.

To answer the question why you need a power of attorney if you have a will, here’s a very simple explanation:

A power of attorney is the opposite of a will – they couldn’t be more different

The power of attorney we’re talking about here is called a Lasting Power of Attorney.

A will protects your beneficiaries’ interests after you’ve died, but a Lasting Power of Attorney protects your own interests while you’re still alive – up to the point where you die. The moment you die, the power of attorney ceases and your will becomes relevant instead. There’s no overlap.

In essence, by setting up a Lasting Power of Attorney, you give someone you trust the authority to make decisions and to act on your behalf and in your best interests – while you’re still living and breathing.

Once you reach a point in time where you need someone to act for you, it’s often too late to get a Lasting Power of Attorney set up. It’s like insurance in that respect. Once it is all set up though, you can forget about it and hope it never has to be used.

One of the most important pieces of advice for anyone with a relative who may at some point need care is to encourage your relative to set up a Lasting Power of Attorney – without delay.

Indeed a power of attorney is vital for anyone – regardless of age – who has money and assets to protect and/or who wants someone to act in their best interest in terms of healthcare choices should they be unable to make decisions for themselves.

There are two types of Lasting Powers of Attorney:

  • Property & Financial Affairs
  • Heath & Welfare

You’ll find lots of information on the internet about these and how they work.

If you’re still asking yourself why you need a power of attorney, consider the prospect of a complete stranger making decisions about your money, your house or your health and wellbeing – including where you live – while your family is powerless to do anything to protect you. That’s an example of the kind of scenario a Lasting Power of Attorney helps prevent.

In that sense, a power of attorney could conceivably be considered more important than a will – depending on your point of view – because it safeguards your interests while you’re still alive. It’s best to get both things sorted though – a will and a Lasting Power of Attorney. It’s also a good idea to have both types: Property & Financial Affairs and Health & Welfare.

Choose one or more people you trust completely to act in your best interests

Remember, you want this person/these people to fight for you should you no longer be able to act for yourself or make decisions for yourself while you’re still alive. These are called your attorneys. You are called the donor – because you’re giving them power to act.

If you do wait until you are no longer mentally able to act for yourself, the Court of Protection may not allow a power of attorney to be set up any more. Instead, your family will have to apply to the Court for a Deputyship order. It means that your family is the likely to have to account for their every action and expense on your behalf – including where joint bank accounts are concerned. It can be very difficult – and having to apply for a Deputyship can also be a long process and expensive, and it would be at a time when your family is already deeply distressed about what may have happened to you.

Setting up a Lasting Power of Attorney now (known as ‘making’ a power of attorney) is straightforward and it gives reassurance that if you do become incapacitated for whatever reason, whoever you choose as your attorney(s) can act immediately on your behalf and in your best interests.

Here at Care To Be Different we see many cases where someone has become unable to act for themselves, but there is no power of attorney. It means the family’s hands are tied are and they are unable to act on their relative’s behalf in any assessment or appeal process for care funding, for example. Many families have good reason to feel that the care authorities are not on their side, and the feeling powerlessness while the authorities make decisions on your relative’s behalf is not something to relish.

Family members with power of attorney, on the other hand, have been able to fight their relative’s corner and protect their interests when dealing with the NHS and the local authority. Without such a document they may not even have been able to access their relative’s bank account on their relative’ behalf to pay a care home or care provider – or to influence the kind of care that will be provided – or even where it will be provided.

If two spouses or partners are making a power of attorney, they each need to do their own. It can be tempting for partners or spouses to choose the other partner or spouse their attorney. However, it’s important to consider who would be able to act if both spouses/partners are incapacitated at the same time. For this reason, many people also name an additional person or people, such an a son or daughter.

Also, spouses should not assume that one spouse can necessarily act for the other just because they’re married. The Court may not see it that way. A spouse often needs legal authority to act for the other – through a power of attorney.

You can ask a solicitor to help you with all this, and you can also do it yourself online. It depends on your preference. But whatever you choose, be sure to read up as much as you can for yourself.

Read more here about powers of attorney – plus you’ll find a link to the Gov.uk page about Lasting Powers of Attorney.

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