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What 5 Legal Questions Families Should Ask Themselves Before A Family Member Goes Into A Care Home Deciding whether a family member should move into a care home can be a huge decision for both the person going into care and the family. It can be very daunting for everyone involved. There are numerous questions families should ask themselves a loved one goes into care and here are just 5 legal questions to consider beforehand.


1. What are the person’s financial circumstances and who will pay for the care home? PO 300



The average cost of a residential care home in the UK in 2017/2018 was £32,344 a year. Whether they pay privately will depend on their financial circumstances. Once the family member’s care needs have been assessed, the council will carry out a financial assessment which would decide what they can pay towards the care home and if the council will pay too. If the person has over £23,250 in capital they will pay towards their own fees. If they have between £14,250 and £23,250, the local council will fund some of their fees. If their assets are below £14,250, they won’t pay for their care although their income can still be considered.

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2. Will they need to sell their home? The value of the home is taken into account unless their spouse, civil partner or another relative who is 60+ or has a disability lives there. If the home is owned jointly, the rules can be rather complex, and it would be best to seek legal advice in this case. There may be a 12-week disregard if the person has less than £23,250 in cash (not including the house) which means that the council can contribute to the cost of the care home for 12 weeks or until the property is sold, whichever is the sooner. The council may also offer a deferred payment agreement which means that the person going into care receives a loan from the council to pay for care until the house is sold. The council can charge interest on this loan.

3. Does my loved one have a Lasting Power of Attorney (“LPA”)?

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An LPA is a legal document which enables a person (“the Donor”) to give another person or persons (“the Attorneys”) the right to make decisions on their behalf. There are two types: (i) Lasting Power of Attorney for Property & Financial Affairs.

This can be used if the Donor has capacity or has lost capacity. In the case of the latter, you will realise how important this document is when a loved one needs care. (ii) Lasting Power of Attorney for Health & Welfare. This allows your Attorney to make decisions about your general health & welfare like your daily routine), medical care, moving into a care home and life sustaining treatment. This type of lasting power of attorney can only be used when the Donor has lost capacity. Both the LPA will need to be registered with the Office of the Public Guardian before they can be used. If an LPA has not been made and the person loses capacity, an application to the Court of Protection for a Deputyship Order must be made which can cause unnecessary delay, expense and stress for all involved.

4. Is there a chance the person could run out of money? This will need to be considered as they may be eligible for financial help from the council, but the council will have a limit on what it will pay. If the care home that your family member is living in at the time is more than this, then your loved one may be asked to move to a smaller room or to a different home which will be extremely stressful. You should read the terms of the care home contract and ensure you discuss this with the care home at the time. Also, ensure you are claiming the right benefit which can include attendance allowance and disability allowance or the daily component of personal independence payment. You or a relative may also be able to look at “topping up” the difference between what the relative can afford and what the council pay. This is referred to as “third party top-up”.

5. Are they entitled to NHS continuing healthcare funding? If your loved one has physical or mental health needs, this may be NHS funded. This is free social care arranged and is non-means-tested. It is funded solely by the NHS. The person would be assessed by a team of healthcare professionals who will consider several factors, such as what help they need and how complex their needs are. To be eligible you must have ongoing significant health needs. It depends on the assessed needs and not a particular diagnosis. It is best to seek legal advice to take you through the process if you think your loved one could be eligible. Emily Taylor is a Partner at BDB Pitmans, and specialises in tax planning, trusts, estate administration and drafting of wills and powers of attorney.

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Profile for The Carer

The Carer #44 Spring 2019  

Issue #44 of The Carer - The leading independent publication for nursing and residential care homes. Published Spring (April) 2019.

The Carer #44 Spring 2019  

Issue #44 of The Carer - The leading independent publication for nursing and residential care homes. Published Spring (April) 2019.

Profile for thecarer