EPAs and Continuing Care – why doesn’t the NHS understand the link?
The connection between Enduring Powers of Attorney and NHS Continuing Care is obvious – and yet we hear accounts of NHS funding assessors questioning the validity of Enduring Powers of Attorney (EPAs) when it comes to someone acting on behalf of a relative in an NHS Continuing Healthcare assessment.
Is this a lack training or deliberate obstruction?
EPAs are the older style powers of attorney that allow someone to manage someone else’s property and financial affairs. Even though the new forms of powers of attorney are now called Lasting Powers of Attorney (LPAs), and can cover Health and Welfare matters and/or Property and Financial affairs, existing financial EPAs can still be used.
There seem to be two key mistakes made by NHS assessors:
- Some assessors think EPAs can no longer be used. This is incorrect. They may no longer be issued, but existing EPAs can certainly still be used.
- Some assessors think that, to act for someone in a Continuing Healthcare assessment or appeal, you have to have an LPA for Health and Welfare. Again, this is incorrect. NHS Continuing Care is all about funding – it’s all about financial affairs – and so an EPA is absolutely fine, and so is an LPA for Property and Financial Affairs.
Even NHS England states in black and white that an EPA is perfectly OK! For example, many families find they need to take their funding case to a higher level appeal, known as an Independent Review Panel (IRP). In letters sent to families from NHS England regarding this IRP process, the following paragraph is typically included in the correspondence:
“Please note that without the appropriate authority to act behalf of an individual who has reduced mental capacity in accordance with the Mental Capacity Act there may be a need to limit the amount of personal information that can be shared. This will not affect the IRP process, only limit some of the contemporaneous evidence and personal details that can be shared with the individual’s family members who do not hold an EPA/LPA or who do not have relevant Court Receiver/Court Deputy award.”
In other words, if you DO hold an EPA or financial LPA – or the relevant Court documents – the evidence used in funding assessments should be shared with you.
And this should be the case whatever stage of the Continuing Care application and appeal process you’re at. It’s a point of law.
It’s not surprising therefore that families who face objections to their EPA suspect that this is actually part of the wider maladministration that so many families experience in the Continuing Care process, and which seems designed to obstruct and delay the assessment process and put families at a disadvantage.
What’s your experience of using an EPA or financial LPA in Continuing Care assessments?