Residential care: your legal questions answered

Planning for the future can be daunting, at best. It is therefore sensible to seek legal and financial advice when you are considering taking big steps, such as moving into a care home.

Thinking about matters in advance, such as whether you will qualify for help with care home fees, how to manage your personal affairs and how your property will be dealt with, can make the process easier for you and your family.

Rachel Taylor, solicitor in our wills, probate & trusts team, answers some frequently-asked questions.

Does the local authority have a duty to assess my care needs?

If you think that you may require care (either at home or in a care home) often the first step is to request an assessment of needs from the social services department of your local council.

Even if you know that you will have to pay for your own care, you are still entitled to ask for an assessment of your needs. This can be helpful as it should provide you with a list of your care needs and details of suitable local care homes, support and services.

The assessor will consider whether residential care is appropriate or whether your needs could be met by other care and support at home. Getting a care assessment doesn’t mean a move to a care home is inevitable. No-one will be made to move if it’s not right for them.

Following the assessment of needs the assessor should produce a care plan with recommendations about your needs and whether or not you need residential care.

They should then set a personal budget indicating how much it will cost to ensure you get what care you need.

If I need care, how will this be funded?

There are three main ways that your care could be paid for:

• By you – known as self-funding.
• By the local authority (either fully or by way of a contribution)
• By the NHS – known as continuing healthcare. If you have significant ongoing healthcare needs you may be eligible for NHS continuing healthcare. This is a free package of care arranged and funded by the NHS.

Where the primary care needs relate to social care rather than healthcare your local authority will conduct a financial assessment based on your capital and income.

If you qualify following the assessment then the local authority can pay for the full cost of care or make a contribution. Your local authority will arrange for the care but there is the ability for individuals (such as family members) to ‘top up’ to enable you or them to have greater choice of a care home.

What is deliberate deprivation? 

If, when conducting the financial assessment, the local authority thinks that you have given away assets (whether cash, a property or other assets) to avoid paying care fees they may still assess you as if you still own the money or property that you have given away.

There is no time limit on how far back a local authority can look when considering deliberate deprivation of assets. Generally, the main factors will be the reasons for making the gift and whether your intention at the time the gift was made was to put yourself in a better position with regards to the means test for care.

How do I ensure that my friends and relatives will be consulted?

A lasting power of attorney (LPA) enables you to appoint one or more attorney(s) to step in and make decisions on your behalf if you are no longer able to do so yourself. An attorney has considerable authority and responsibility so it is important to appoint someone that you trust to make decisions in your best interests.

There are two separate types of LPA:

• Personal welfare: this covers decisions such as where you live and your medical care.
• Financial decisions: this covers decisions such as buying and selling property, opening and closing bank accounts, investing assets and paying bills.

It may be difficult to think about a time when you will require help making decisions. However, making an LPA should reassure you that arrangements are in place so that your care can be arranged and paid for even if you are not able to make decisions about this yourself. The sooner you create an LPA the better, then your wishes and decisions are in place should anything unexpected happen.

If you lose capacity and have not made an LPA, then it is still possible for someone to be appointed to act on your behalf. This would be done by making an application to the Court of Protection for the appointment of a deputy, which may not be someone of your choosing. It can be a long, expensive and drawn out process so making an LPA would avoid this stress.

Where you do not have a close family member or there is nobody else appropriate to act as a deputy we have solicitors who are well experienced in this area. They can act as a deputy on your behalf.

Should I think about making a will or reviewing my existing will?

One concern people have when care is contemplated is the impact that it may have on inheritance they can leave to friends or family.

Caution must be taken when giving away assets to ensure that the deliberate deprivation rules are not triggered. However, with specialist advice, it is possible to protect assets using your will so that the children get the benefit of your estate rather than it being depleted by care home fees. You can achieve this is by using certain trust structures in your will. These trusts can be used to allow your surviving spouse to benefit from your estate after you’ve died but, at the same time, not leaving assets outright to them. This means that, if your surviving spouse is subject to a means test, the assets held in the trust do not form part of their estate.

It is important to obtain advice specific to your own circumstances to enable you to consider the choices available and what is involved. If you own a property, this will include considering how the property is held.

Rachel helps people with their wills, lasting powers of attorneys, estate planning, administration of estates, trusts and Court of Protection applications. She has a particular interest in supporting elderly and vulnerable clients in drafting wills and LPAs, particularly where they need their inheritance protected. She is a member of the Society of Trust & Estate Practitioners, an association for practitioners who specialise in family inheritance and succession planning.

We hope that you found this brief Q&A useful, however it does not purport to be legal advice. You should therefore take professional advice on your particular circumstances which we would be delighted to help with.