Post No27…Powers of Attorney, and ways they can affect a care home placement
Posted on 9th May 2023 at 07:00
Introduction
Powers of Attorney are important in many different circumstances, and can offer families peace of mind knowing that decisions can be made, if necessary, in their loved one’s best interest. I have witnessed, in my time, some more unfortunate cases where the family are seeking a care placement but no Power of Attorney is in place, which caused added stress to an already difficult situation.
This post will look at what Power of Attorney’s are, but more so at how they can affect a care placement, and what you can potentially do if you do not have one.
Enduring Powers of Attorney (EPA)
Pre-October 2007, EPAs were used to enable the donor (the person who needs an Attorney) to list a person(s) who can act in their best interest regarding legal and financial matters. They were superseded by Lasting Powers of Attorney which are still being used to this day.
Lasting Powers of Attorney (LPA)
Lasting Powers of Attorney come in two forms:
· Finance and property
· Health & Welfare (H&W)
For the purpose of this post, I am focusing more on the health & welfare LPA.
Health & Welfare (H&W) LPA
For those with capacity making their own decisions, a H&W LPA is an important document but is not essential for choosing a care placement. This is because the donor agrees to the placement, they understand the nature of the placement, and they will likely sign their own contract.
However, if the donor loses capacity, the Attorney(s) then become the decision makers and, if it is in their best interest, can place the donor in a care home. The most important thing to note here is that if the donor does not have capacity, and there is no Attorney, finding a placement within a care home can become extremely difficult.
Did you know? The financial LPA can be registered and used by the attorney whilst the donor still has capacity, but the health and welfare LPA cannot.
What can I do if I do not have H&W LPA?
If a person loses capacity without an Attorney in place, there is a process called Deputyship that can be applied through the Court of Protection. If granted, a Deputy can make decisions that the Court feel are necessary to keep the person who has lost capacity safe, which can include a care placement.
Ah, so there is a plan B then?
There is a plan B, but it's not so great. Firstly, the application for Deputyship can take much longer, normally around 6 months depending on the backlog of the Court. During this time, the hopeful Deputy must prove to the Court that they are, without doubt, the right person who will make decisions in the person’s best interest.
This can take time and be quite stressful, and may involve the provision of lots of documentation to the Court. It is also more expensive than an LPA option because of the complex nature of the application and it is normally advisable to hire a solicitor, where as LPA’s can be applied for online.
How would this affect a care placement?
If a person lacks capacity and there is no Attorney for H&W nor Deputy in place, then a care home may refuse the admission. In my time, I have seen some families who are really struggling to keep a loved one safe at home whilst they wait for Deputyship to be granted. This can be an extremely stressful time, especially if the person is walking with purpose in the community, or leaving the gas on…
Care homes are regulated by the Care Quality Commission (CQC) and therefore providers must be careful about who they can admit into the home, and who signs their contracts.
Best Interest
There are some instances where a person without capacity can move into a care home without either an Attorney for H&W or a Deputy. This is called a best interest decision. I would, however, say that families should not rely on best interest and are better off seeking an LPA, because a best interest decision can only by applied in certain circumstances.
If a person, who either already lacks or is later deemed to lack capacity, goes into the care of a hospital, and cannot safety be discharged back to their home, the hospital team can complete a best interest decision. This is done by a Multi-Disciplinary Team, who have a capability to make a clinical decision to prevent the person causing themselves harm. The result is usually a placement into a care home.
If the hospital, or Social Worker, can provide this information to a care home, the home is able to accept the resident without an Attorney or Deputy in place.
Conclusion
When it comes to finding a care placement for a person who lacks capacity, having an LPA for H&W is by far the best and least expensive option. Deputyship can be used to make the placement, but can take time and extra expense to draw up. Best interest can work well in certain circumstances but really should not be relied upon if it can be avoided, and can normally only be granted in the person is in the care of a hospital.
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