Elderly Care Law

The Court of Protection (Amendment) Rules 2011 come into force on 12 December 2011.

These Rules have been brought in to authorise Court of Protection officers to deal with the large volume of routine applications currently being dealt with by Judges.

There will be a number of safeguards:

• the court officers will be authorised by the Senior Judge or the President of the Court of Protection
• the officers will only be authorised to deal with specific types of application, limited to decisions about non-contentious property and financial affairs
• if the officer thinks a matter should be considered by a Judge, instead of a court officer, they must refer that matter to the Judge
• they cannot deal with any application by way of a hearing (only on paper); and
• they cannot deal with an application for the reconsideration of a decision made by themselves or another authorised court officer.

The Ministry of Justice has confirmed that the cases decided by the authorised officer will follow the same procedure as those decided by a Judge and the decision of the officer will carry the same authority as a judicial decision, so it will be legally binding.

There will still be a fee for the applications, regardless of whether they are dealt with by the authorised court officers or a Judge; but the purpose of the new Rules is to reduce the delays that are currently causing unnecessary anxiety to the most vulnerable people, whose affairs are being dealt with by the Court of Protection as a last resort.   

Posted in: Court of Protection, Dementia, Elderly care, Lasting Powers of Attorney, Mental Capacity
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The main benefit to having a Lasting Power of Attorney (“LPA”)  is that there is no delay if it needs to be used as long as it is registered.

 If a deputy application needs to be submitted it can take months.  The Court needs to be confident that the right person is being appointed and safeguards are therefore put in place to make sure key people are notified. The Court also needs a full audit of all the persons assets to make sure they are properly protected.

If someone needs to move into a care home, a house needs to be sold or a carer is required, this can create problems.  It is often the case that steps need to be taken before the Court has made the appropriate appointment leaving the family or social services in a difficult position.  They need to act but have no authority to do anything.  They may have no access to money to take those steps.

 The Court process can be frustrating and time consuming.  If you need advise on fast tracking an application please ask.

Posted in: Court of Protection, Lasting Powers of Attorney
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On 4th April the Court of Protection published their new list of panel deputies.

So what is a Court of Protection panel deputy? And how many are there in the Bristol area? I get asked this question quite regularily. I think it is partly because a number of local lawyers seem to think they are on the panel when they are not!

Here is the list panel deputy list . 

As you can see I am the only Court of Protection panel deputy in Bristol.  There is then one in Bath and another in Plymouth.

The  Court put together the approved professional deputy list to  refer families  in situations where nobody closer to the Client is willing or able to act.  There are times when it is due to family conflict or disagreements.

As a panel deputy the most important aspect of the role is to always act in the best interests of the individual and consult with the family.  It is not always possible to agree with all the family especially if their views are at odds.  One has to always return to what is best for the individual. 

If I am appointed I act personally.  There are legal bodies called trust corporations who can take up the role but most families want to know the particular person they are going to deal with and make sure they have confidence in them before the process begins.  A trust corporation can feel impersonal and create uncertainty about who will be handling matters.

Posted in: Court of Protection
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A new Consumer Bill of Rights was announced by Consumer Minister Edward Davey last week which aims to clarify and strengthen consumer law and provide additional protection for vulnerable people.

Consumers are currently protected by a variety of laws and regulations which often overlap and can be complicated or confusing. The government proposes that the new Bill will provide a single place for all consumer rights, which will be published in plain English, making it easier for people to find and understand their rights and therefore enforce them.

The government says the Bill will provide much stronger protection for vulnerable people against aggressive practices, such as

 implying a connection with social services or an old age charity;
 preying on an elderly person’s fear of losing their independence;
 writing out cheques or an order form for the victim; and
 salespersons refusing to leave the premises until they have secured a sale.

The Bill also proposes that victims should have a clear time in which to unwind the contract, which will extend beyond the default cancellation period currently in place.

Consultation on the new Consumer Bill of Rights is expected to take place in late 2011 or early 2012.

Any protection for elderly and vulnerable people is welcome.

Posted in: Elderly care, Uncategorized
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The Office of the Public Guardian has published the responses to its consultation on the proposed increase of its fees for 2011/2012 and confirmed the new fees, which come into effect on 1 October 2011:

• An increase in the fee for making an application to register a lasting power of attorney (LPA) or enduring power of attorney (EPA) from £120 to £130

• The introduction of a new “Resubmission Fee” of £65 each time an LPA is resubmitted to the OPG within three months of an application being sent back to the applicant as invalid. This fee only applies where a new application has to be submitted; there is no fee for resubmission of amended applications

• The OPG will stop producing office copies of LPAs, except in extreme and limited circumstances, when they will charge a fee of £35 per copy

• The removal of the £25 fee currently charged to search the three OPG registers: LPAs, EPAs and Court Orders appointing deputies

• The individual Type 1, 2A and 2 supervision fees will be replaced with a single supervision fee of £320

• An administration fee of £35 will be introduced for those requiring the minimal level of supervision (income based exemptions to this fee will be made available)

• The maximum threshold of capital for those cases qualifying for minimal supervision will rise from £16,000 to £21,000 over a period of four years

• The introduction of a new fee remissions policy of 50% for those who have a gross income of up to £12,000 (previously they would have received a 100% remission)

The Office of the Public Guardian says the proposed changes will help ensure that the fee structure remains fair and equitable whilst fully covering OPG costs.

For further information contact Anthony Fairweather on 0845 209 1265.

Posted in: Elderly care, Mental Capacity
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Compensation claimants – including children and the elderly – saw their awards eroded by £140m last year.

This article was published in the Observer on Saturday 30 July 2011.

Compensation claimants who deposited their awards with the Court Funds Office (CFO) suffered a £140m erosion in value last year as inflation ate into their money.

The CFO provides banking and administration services for about 140,000 people, the majority of whom have received personal injury awards and rely on income from their award to fund medical care and specialist support. The clients include children who suffered from medical negligence at birth, people who have become mentally incapacitated through a road traffic accident, and elderly people suffering from dementia. Money may also be deposited in the funds while waiting for the settlement of a civil court action.

Anthony Fairweather, a partner with Bristol law firm Clarke Willmott, acts as a deputy – a person appointed by the court of protection to manage the affairs of someone who lacks the mental capacity to manage them. Such deputies may be professional, such as a solicitor, or a lay person – usually a family member of the person concerned. In the case of very large awards the deputy is usually professional. “In both cases, the deputies may not review arrangements often enough, or feel confident about moving money away from the CFO,” he says.

 Click here to read the full article >> 

Posted in: Uncategorized
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 The UK Payments Council has cancelled its target to close the cheque clearing system in 2018 and confirmed that the use of paper cheques will continue for as long as customers need them.

The Payments Council said it had reached its decision after consulting with over 600 businesses and customer groups and had prioritised the needs of older people, the voluntary sector and charities.

Whether a business will accept a payment by cheque is, however, still a concern for some elderly people.  The UK’s cheque guarantee card scheme closed at the end of June, meaning that the payer’s bank will no longer guarantee to pay the value of the cheque.  A business can still choose to accept payment by cheque, but takes a risk that the bank will not honour the amount of the cheque if the customer doesn’t have enough money in their bank account.

But the Payment Council’s decision to preserve cheques will be reassuring for many elderly people who have confidence in this method of payment and dislike or mistrust the use of cards or electronic payments. 

For charities, the impact of ending cheque payments would have been considerable.  A large proportion of donations are made by cheque and without any practical alternatives many charities would have seen a substantial drop in funding; some might have struggled to operate at all.

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The Dilnot Commission yesterday published its review of the funding of care and support in England, and recommends that a national standard of care should be set to deliver consistent and sustainable services to people, regardless of where they live.

The report recommends that individuals should make lifetime contributions towards the care that they will need, but that contribution should be capped at between £25,000 and £50,000 – Dilnot recommends £35,000 as a fair figure. The State would pay for the cost of care above the capped figure.

In addition, the report recommends that people living in care homes would be expected to contribute a standard amount to cover their general living costs, such as food and accommodation.  A figure in the range of £7,000 to £10,000 a year has been suggested.

The report recommends that means testing should remain so that the poorest would not need to pay for their care, but the upper limit of the means testing threshold should be raised from £23,250 to £100,000. The report says the combination of the capped cost model (with the cap set at £35,000) and the extended means test would ensure that no one going into residential care would have to spend more than 30% of their assets on their care costs.

The report says that by clarifying the support that the State will provide and capping the overall financial risk to individuals, the financial services industry will be encouraged to develop new products   to cover the costs below the cap which could be linked to pensions, savings, insurance and housing.

Of course, these are only recommendations and the Government may consider that the shortfall to be provided by the State, would be too great to be able to implement the funding cap or raise the upper limit on the means-test threshold.

It is hard to know where the debate on care provision will end up and all we can hope for is that the current system will be improved.  Whatever changes are implemented, simplification needs to be at the heart of the change.

Posted in: Care Funding, Elderly care
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The consumer is gradually going to see new providers of legal services entering the market.  The opening of legal centres in WH Smiths, the CO-OP and other outlets will no doubt offer a convenient way for everyday products like lasting powers of attorney and wills to be purchased.

 Stacey Solomon has certainly been kept busy opening law firms up under the new  QualitySolicitors banner.  Her appearance in Hull recently to open a new addition to the brand has, according to their Chief Executive,  ”transformed the opening of these branches from something of passing interest to a major event for the City of Hull and for Beverley”.

Good for Hull and Beverley.

As one fan said “it’s great that QualitySolicitors Lockings have brought a star like Stacey to Hull.  It shows how much they care about the local people…”

The big question is – did she buy a will?

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Everyone is wise after the event.  You never know when something might happen to you but putting in place a will sits somewhere behind putting the car through an MOT. 

But not having a will can lead to huge heartache, inconvenience and, more to the point, expense.

If you have lost capacity and need a will then an application will need to be made to the Court of Protection to put one in place.  It might all go smoothly.  There may be no dispute or debate.  But what if the new statutory will cuts out a beneficiary under the old will – a recipe for a smooth application to the court?

As with contested wills where family disputes break out after death, a constested Statutory will application can be a very expensive exercise.  You may be oblivious to the goings on but you are likely to be paying for it.

Posted in: Living Wills, Mental Capacity, Statutory will, Wills
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