Considerations When Going into Care

Moving into a care home is a big life change and is an ideal time to sort out or review your personal affairs, including your Will and Lasting Power of Attorney. The process of moving into a care home can be emotionally and practically overwhelming. Having these legal documents in place ensure your housing, medical and financial decisions are managed by your trusted loved ones and your assets are distributed in accordance with your wishes.

Review your Will

Moving into a care home often triggers major changes to your finances, such as selling a family home to fund your care. 

If you do not already have a Will in place, now would be a good time to think about how you would like your estate to pass in the event of your death.

If you do already have a Will in place, now would be a good time to review your Will and decide if it is still appropriate for your circumstances.

Why a Lasting Power of Attorney is crucial

If you or your loved ones are entering into a care home having a Lasting Power of Attorney ensures that appointed Attorneys can legally step in and manage your affairs. Some care homes insist on a Lasting Power of Attorney being in place before they can formally admit a resident. Admission to a care home involves entering into a legally binding contract for services and payment. If you lose capacity someone else must have legal authority to enter into the agreement on your behalf. 

There are two types of Lasting Powers of Attorney:

1.       Lasting Power of Attorney for Property and Financial Affairs

This allows your Attorneys to make financial and property related decisions on your behalf, such as managing your bank accounts, paying your bills and care home fees and renting or selling your property to fund care fees should the need arise. Your Attorneys must act in your best interests, consider your needs and keep accounts of any financial activity. 

With your permission the Lasting Power of Attorney for Property and Financial Affairs can be used as soon as it is registered with the Office of the Public Guardian. It can also be used if you lose your mental capacity. 

2.       Lasting Power of Attorney for Health and Welfare

This allows your Attorneys to make decisions about your daily routine, medical care and which care home is most suitable for you if you lose the mental capacity to decide yourself. It also allows your Attorneys to give or refuse consent to life-saving medical treatment. The Lasting Power of Attorney for Health and Welfare only comes into effect if you lose mental capacity. 

Registration with the Office of the Public Guardian

Both types of Lasting Powers of Attorney need to be registered with the Office of the Public Guardian and the registration process can take 6 months. 

Dementia

Contrary to popular belief, it is often possible for a person suffering with Dementia to make a Will.

Dementia is a degenerative condition which can often progress quickly and therefore if you do wish to make a Will or Lasting Power of Attorney, timing is key.

In order for someone to make a Will they must have what is known as testamentary capacity.  This means having the necessary cognitive ability to understand:

• The purpose of a Will 
• The extent and value of their assets 
• The effect of decisions included in the Will, including omission of individuals who can have a claim upon their estate 

If someone has a dementia diagnosis it is best practice to consult with a Solicitor to ensure that they are satisfied of testamentary capacity.  If capacity is in doubt it may be necessary to get an assessment of capacity by an independent medical expert before proceeding to take instructions.

What if an assessment of capacity comes back negative?

If it is found that a person does not have capacity it will not be possible for them to put in place a valid Will or Lasting Power of Attorney and it would be necessary for their family members to apply to the Court of Protection to be appointed their Deputy in order to manage their financial and property affairs.

A Deputy cannot change the terms of a Will which has been put in place whilst a Dementia patient had capacity, however where there is no Will in place a Deputy can apply to the Court to create a statutory Will on behalf of the person who lacks capacity. 

At Jordans Solicitors we have worked with the Alzheimer's Society Dementia Friends initiative to enable us to provide the best service and understanding for those living with Dementia.