Legal Update for the Elderly Client practitioner

Rose Cottage, Woodman Lane, Sparsholt, Winchester, Hampshire SO21 2NS Tel: 01962 776442 Fax: 01962 776 525 Mobile: 07850 741262 Email: gill.steel@laws...
Author: Marvin Goodman
1 downloads 3 Views 263KB Size
Rose Cottage, Woodman Lane, Sparsholt, Winchester, Hampshire SO21 2NS Tel: 01962 776442 Fax: 01962 776 525 Mobile: 07850 741262 Email: [email protected] www.lawskills.co.uk Twitter: @gillsteellaw LinkedIn: www.linkedin.com/in/gillsteel

Legal Update for the Elderly Client practitioner

The following notes are intended as an aid to the participants attending the course to be read in the light of any comments made by the speaker during the course. The speaker’s remarks, comments and notes are intended only to stimulate and guide participants and to suggest possible courses of action to them. The notes are not a substitute for specific research upon a particular set of facts. Participants should take expert advice before taking or refraining from taking any action on the basis of the speaker’s comments and these notes. Whilst every effort has been made to ensure accuracy the speaker cannot accept responsibility for the information contained in these notes, for errors or for matters affected by subsequent legislation. Legislation Extracts from legislation quoted within any of the material are courtesy of http://www.legislation.gov.uk which is licensed under the terms of the Open Government Licence v1.0 the terms of which appear at http://www.nationalarchives.gov.uk/doc/open-government-licence/. Legislation on this site is provided for information purposes only and for ease of reference relevant to the published material. Use of quoted legislation in these materials and published on www.lawskills.co.uk website does not constitute endorsement by www.legislation.gov.uk of LawSkills Ltd or any of its contributors.

© Copyright 2016 LawSkills Limited All rights strictly reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, and recording or otherwise without prior written permission of the author.

© LawSkills Ltd.

Page 1

11 January 2016

Rose Cottage, Woodman Lane, Sparsholt, Winchester, Hampshire SO21 2NS Tel: 01962 776442 Fax: 01962 776 525 Mobile: 07850 741262 Email: [email protected] www.lawskills.co.uk Twitter: @gillsteellaw LinkedIn: www.linkedin.com/in/gillsteel

Legal Update for the Elderly Client practitioner 1 hour - Updating Aim: • To highlight the latest developments in law affecting the daily activity of practitioners specialising in elderly client work Outcome: • Participants will know how recent changes impinge on their work Agenda: • Lasting Powers of Attorney o New forms o New OPG Guidance for Attorneys • Vulnerable Clients o SRA Press Release – 22 July 2015 o Law Society Guidance • Deprivation of Liberty o P v. Cheshire West [2014] UKSC 19 & subsequent commentary o Law Society Guidance o Social Care Institute for Excellence resources o Law Commission Consultation Paper No 222 – ends 2 November 2015 • Care Act 2014 o What’s in force? o What’s postponed? • Recent cases © LawSkills Ltd.

Page 2

11 January 2016

Legal Update for the Elderly Client practitioner 1. 1.1

Lasting Powers of Attorney New forms

Background Following the consultation on the LPA forms which closed on 26 November 2013 and feedback from users, the Office of the Public Guardian (OPG) issued new LPA forms in July 2015. Members of STEP and SFE were involved in their redesign. There was a transition period, but this ended on 1 January 2016. The new forms MUST be used from 1 January 2016. 1 January 2016 is relevant for the execution of the LPA and not its application for registration. So if a client executes an LPA in the 2009 version before 1 January 2016 there is no time limit (other considerations aside) on when you have to apply for its registration. However, bear in mind that if your client signed the 2009 version LPA you will need to be extra careful that there is no reason for the OPG to return the LPA unregistered after 1 January 2016. If the OPG claim it has not been correctly completed you will have to ask your client to complete the new version. The 2009 versions of the forms had their drawbacks which the new versions seek to address. Although it was a possibility (welcome to many) at one stage that the Property and Finance LPA would be combined with the Health and Welfare one, they remain separate forms. Due to the huge outcry over the potential danger with electronic signatures, although the forms can be completed online (and usefully, errors highlighted in the process, requiring correction on the spot) it will still be necessary to print the form and arrange for the various parties to complete traditional ‘wet’ signatures. Key differences between old and new versions Caroline Bielanska has produced a very helpful table comparing the old and new LPA forms with comments on the differences. See http://www.step.org/sites/default/files/LPA_Regulation_Amendments2015_Points_ Difference_0.pdf. a. Name change The old title of LPA - Property & Financial Affairs (PFA LPA) has been replaced with LPA Financial decisions (FD LPA) and is given the number LP1F with the Health and Welfare form (H&W LPA) being renamed LPA Health and Care decisions (HCD LPA) and being renumbered LP1H.

© LawSkills Ltd.

Page 3

11 January 2016

b. Application form is incorporated in the appointment form In the new 2015 version, the application form is incorporated into the appointment form for both types of LPA making it 20 pages long as opposed to 11/12 for the 2009 appointment form alone. Combining the appointment and registration forms has led some practitioners to question whether to recommend to clients that for the Financial LPA it is advisable to register the LPA immediately. Some clients prefer the LPA to remain unregistered, viewing it as an emergency measure only. Although it is not strictly necessary to register the LPA as soon as it has been executed, attorneys who have been appointed to act immediately will only have the authority to act following the LPA’s registration. This could lead to very real problems in the event of the donor having an accident or e.g. a stroke and losing capacity, with the time delay during registration proving a real headache. Just at the time it is needed most, the attorneys would have no authority to act! c. Design encourages donor to complete online One difference which strikes you first is that there is a cover page to the both types of LPA which states in bold that it’s simpler, clearer and faster to make an LPA online. The whole form reads in far more ‘user-friendly’ lay language and the design is also aimed more at completion by the lay individual, rather than being professionally completed. d. Legal rights & responsibilities On p2 of the 2009 form there is the ‘Information you must read’ and within it the reference to the Mental Capacity Act Guidance. This is now renamed ‘Your legal rights and responsibilities’ and is repositioned at p9. Although the MCA principles are set out as they were on the FPA LPA, the FD LPA does not now set out what ‘best interests’ mean; it refers instead to the ‘Application Guide’ LP12 section A8 on p34 (of 48 pages). Nor does it expressly state the need to consult with the donor and others, leaving this to the LP12. The LP12 is a downloadable document and it can be found at https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney It has been updated on 7 September 2015 and covers both types of LPA. It provides detailed guidance on correctly completing the LPA, making careful choices about the attorneys and their powers, registering the LPA, notifying people and cancelling the LPA as well as (very briefly) what to do when concerns arise about the attorneys. It contains the following at page 28: “The only circumstances in which you must write an instruction is in a financial LPA if: • you have investments managed by a bank and want that to continue • you want to allow your attorneys to let a bank manage your investments

© LawSkills Ltd.

Page 4

11 January 2016

In these cases you could use wording like this: “My attorney(s) may transfer my investments into a discretionary management scheme. Or, if I already had investments in a discretionary management scheme before I lost capacity to make financial decisions, I want the scheme to continue. I understand in both cases that managers of the scheme will make investment decisions and my investments will be held in their names or the names of their nominees.” However, OPG can’t guarantee that your bank will accept this wording. You must ask your bank to confirm in writing that they’ll accept the wording before you register your LPA. That will minimise any difficulties in using the LPA if you lose mental capacity.” This is not something which many LPAs will contain. It is being flagged by wealth managers who are not accepting instructions in some cases where a clause along similar lines is not included in an FD LPA. The Guidance says that: “If the LPA has already been registered, the attorney(s) will have to apply to the Court of Protection to allow them to use a discretionary fund manager.” Usefully though, the ‘Your legal rights and responsibilities’ section on p9 of the application form does set out that attorneys cannot change the donor’s Will and that the LPA will expire on the donor’s death. For each section of the 2015 LPA there is a signpost to the relevant section of the LP12 guidance document. e.

Should the donor restrict when it comes into effect?

Hidden away in section 5 on p6 of the FD LPA is the rather crucial part where the donor is asked when the attorneys are to have the power to act: only when capacity is lost or as soon as it has been registered (so when the donor retains capacity)? This is a much more obvious choice compared to the 2009 LPA where a donor has to insert a restriction limiting the authority to when they have lost capacity. Lush SJ referred expressly to this new question in XZ v OPG [2015] EWCOP 35 (considered below) when looking at complex restrictions and whether they were ineffective or not. The FD LPA does state ‘health warnings’ under each choice guiding donors to the more practical choice of immediate authority rather than the choice of only on the loss of capacity; “Be careful – this can make your LPA a lot less useful.” Many practitioners believe this choice to be a major issue with the new form. The guidance is not explicit enough. Without appropriate professional guidance donors could easily find that limiting authority to a time of non-capacity feels like a sensible initial choice but then later when they are infirm but retain capacity and want their attorneys to act they cannot do so. Or such a choice may make their LPA highly

© LawSkills Ltd.

Page 5

11 January 2016

impractical following the loss of capacity as financial institutions demand proof of noncapacity each time an attorney tries to use it. Isn’t the key point to only appoint trusted people as the attorneys? f. Charging clauses A fairly glaring omission from the new forms, certainly as far as professionals will be concerned, is the lack of any specific provision (or indeed question raising it for the donor to consider such a possibility) for the payment of professional attorneys. There is simply no mention of professional attorneys on the forms. This is left to A7 p32 of the LP12 guidance. Any charging clause therefore needs to be inserted as an instruction on p8 of the LPA. g. Replacement attorneys Although there continues to be a section on the 2015 forms for the donor to appoint replacement attorneys, such an appointment of more than one replacement attorney will be joint by default and all of them will step in at the same time. This is regardless of how the original attorneys were appointed. If the donor wants to change this, the form directs the donor to obtain legal advice on the point and encouragingly states “You can change some aspects of this, but most people don’t.” It is still possible, despite the indication that it’s not recommended, that replacements can be appointed jointly and severally. Interestingly, the guidance suggests various scenarios for attorney/s with one or more replacements, but does not suggest replacements where attorneys have been appointed jointly and severally. The guidance does go into some detail about the difficulties of replacing attorneys appointed jointly as opposed to jointly and severally with some of the original attorneys. As recommended by Senior Judge Lush, it recommends making two LPAs; the first one appointing the attorneys jointly and the second jointly and severally. h. Certificate providers Even if the donor does not specify anyone to be notified of the application of the LPA only one certificate provider is needed on the 2015 forms. When the certificate provider signs the form they no longer state that they are acting independently of the donor or attorneys – all reference to this has been removed. There remains the requirement for the certificate provider to be eligible and not in the list of prohibited people. The prohibited categories remain listed in this section. i. No acknowledgements by attorneys re making gifts and keeping accounts Further omissions in the 2015 FD LPA form are in section 11 where the attorney signs. The attorney is still confirming that (inter alia) they have a duty to act in accordance with the MCA principles but they no longer acknowledge their limited power to make gifts nor their duty to keep accounts. When so many reported CoP cases concern the revocation of LPAs for lack of keeping financial records or for making gifts to themselves (see the cases below for just some very recent examples) this seems very surprising and an undesirable omission.

© LawSkills Ltd.

Page 6

11 January 2016

j. Differences between FD LPA & HCD LPA Perhaps the reason for some of these omissions could be that the forms for both types of LPAs are identical throughout save for limited differences and the OPG wanted to keep the differences as few as possible. The main difference is that section 5 of the HCD LPA concerns choosing whether attorneys have the power to make life-sustaining treatment or not, rather than the question of the timing of the attorneys’ appointment and the lack of capacity on the FD LPA in section 5. Section 5 of the HCD LPA needs to be signed by the donor under either option A (giving attorneys authority regarding life-sustaining treatment) or option B (not giving such authority). No signature is needed in section 5 of the FD LPA. There are also small consequential differences in section 9 where the donor signs, section 11 where the attorney signs and the new checklist on the last page. New Guidance for Donors In addition to the LP12 guidance, on 10 August 2015 the OPG posted updated online guidance to potential donors wanting to make either an FD LPA or an HCD LPA and this can be found at https://www.gov.uk/power-of-attorney. It is aimed at the layman and covers choosing the attorney, making the LPA, registering it, certifying copies of it and ending it. In making an LPA it directs users to completing the forms online but does say that “You can get someone else to use the online tool or fill in the paper forms on your behalf, e.g. a solicitor.” The guidance dated 1 February 2013 on avoiding invalid provisions remains unaltered as it is looking at specific provisions which could be invalid such as pitfalls when appointing attorneys jointly for some decisions and jointly and severally for others and conditions and restrictions which may be ineffective. The fee for registering an LPA remains at £110 which is the fee introduced from 1 October 2013. 1.2

New OPG Guidance for Attorneys

The OPG state that their research shows that many acting attorneys need more advice on how to carry out their role properly. The OPG have therefore produced two new guidance leaflets which are a quick guide to acting as an attorney. https://www.gov.uk/government/collections/lasting-power-of-attorney-gettingstarted-as-an-attorney They are aimed at the layman. They were last updated on 3 September 2015 having been first published on 14 May 2015. The Guidance is much shorter than the original Code of Practice so hopefully it will be read by attorneys. The LP11 concerns property and financial affairs and is 6 pages long. It explains key concepts such as “‘Mental capacity’ is the ability to make a specific decision at the time it needs to be made” and highlights the duty to always act honestly in the best interests

© LawSkills Ltd.

Page 7

11 January 2016

of the donor. It makes the sensible suggestion of talking to the donor about how they look after their finances and asking them where they keep financial information. Looking after finances includes discussing birthday gifts to family and friends and donations to charity. It suggests getting certified copies of the LPA which may not be appropriate if the donor doesn’t want them to start acting immediately. LP11 expresses the Mental Capacity Act presumption of mental capacity as the starting point when considering if the attorney needs to make the decision. It suggests different ways to help the donor make decisions themselves first such as using pictures and then goes on to explain what to do when the donor lacks capacity and the attorneys have to make the decision for the donor. Acting in the donor’s best interests is stressed, as is the need to keep accounts. The section on gifts is rather brief and doesn’t fully explain the very limited s12 powers; only birthday presents to family are mentioned when s12, although very limited, is wider than only birthday gifts and allows gifts on customary occasions to related or connected persons including the attorney. Perhaps it is better to be more rather than less restrictive in the guidance to attorneys. In contrast, the application form guidance LP12 which the donor is recommended to look at, does set out far more detail on the limited s12 gift powers within A7 on p31. Customary occasions are specified, together with examples of gifts that cannot be made by attorneys such as paying grandchildren’s school fees. It seems a shame that more guidance is not included for the attorneys on this important issue. LP11 then sets out information on appointments being joint, or joint and several or a combination for different decisions. Guidance is provided for those occasions when the attorneys cannot agree with each other. A helpful box towards the end suggests: Before you act THINK – is this what the donor would want? CHECK – can the donor be helped to make all or part of the decision? REMEMBER – every decision must be in the donor’s best interests.

There is useful signposting to the MCA Code of Practice and organisations such as Age UK. LP10 is the six page guidance for a health and welfare attorney. These new leaflets will be sent in hard copy to attorneys along with the OPG letter notifying them of the LPA’s registration so alert attorneys to look out for them. It could be useful to also show a copy to the donor when they are thinking about who to appoint so they have a clear idea of the attorney’s role and can choose the appropriate

© LawSkills Ltd.

Page 8

11 January 2016

person accordingly. Consider if a copy should be sent to prospective attorneys along with the LPA for their signature so they have advance warning of their role and can decline to act before the form is completed if they are unhappy with their future responsibility.

2.

Vulnerable Clients

2.1

SRA Press Release – 22 July 2015

In this press release the Solicitors Regulation Authority (SRA) asks solicitors to “make customer service a priority, especially for vulnerable people” and confirms that they are “calling on solicitors and firms to raise the bar in customer service in order to help and to protect vulnerable people.” This follows from their third annual Risk Outlook report published the day before. At 44 pages long the Risk Outlook 3 takes some reading and covers other priority risk areas, but the press release highlights the points of particular interest to anyone with vulnerable clients. It states that the report found that vulnerable people have a greater need to be protected from poor service and to be given more support in claiming redress if things go wrong. This would seem obvious to most practitioners, but it is noteworthy that the SRA are increasingly focussing on the particular needs of vulnerable clients and that addressing those needs is one of their priority risks. In May 2015 the Law Society announced it would be working with members to develop a new accreditation scheme focusing on protecting vulnerable clients so watch out for that as and when it is launched in the future. According to the press release the report findings indicate that vulnerable clients are: • • •

Less likely to complain to the solicitor or firm; Less likely to complain to the Legal Ombudsman or the SRA; and Not always able to judge the quality of service until it is too late.

The current SRA Chief Executive Paul Philip is quoted as saying that it is vital that solicitors and firms identify how they can support vulnerable clients more effectively, with data from the SRA and Legal Ombudsman showing that there were over 27,000 service complaints were made to law firms in 2014. Of particular interest in the press release is a wide definition of who a ‘vulnerable person’ actually is: “A vulnerable person could be someone with a disability; someone with limited ability to judge the quality of legal advice; someone in a stressful situation; or someone having experienced a trauma or personal tragedy.” Clearly this is almost as wide a definition as possible and doesn’t limit being vulnerable to the elderly.

© LawSkills Ltd.

Page 9

11 January 2016

According to previous information from the SRA, firms will have a vulnerable client base if their work includes immigration, mental health, elderly clients and crime. Circumstances can expand this to include “anyone who is socially, mentally or physiologically vulnerable”. The SRA’s former director for risk, Samantha Barrass, said, “We can all become vulnerable depending on the circumstances and what happens to us. But the responsibility for judging whether your client base is vulnerable is the firm’s own.” [Solicitors Journal 28 February 2012]. You must provide your Will drafting service to achieve the Outcomes in Chapter 1 Solicitors Code of Conduct 2011; acting with the indicative behaviours in mind. For example: • • • •

2.2

Outcome 1.1- Treat clients fairly Outcome 1.2 - Provide services in a manner which protects their interests Outcome 1.5 - The service you provide is competent, delivered in a timely manner and takes account of your clients’ needs and circumstances Indicative Behaviour 1.6 - In taking instructions & during the course of the retainer, having proper regard to your client’s mental capacity or other vulnerability, such as incapacity or duress Law Society Guidance

On 2 July 2015 the Law Society published their practice note entitled ‘Meeting the needs of vulnerable clients’ which was written in response to research published in July 2013. This research was carried out on behalf of the Legal Services Board, the Legal Services Consumer Panel and Mencap and identified that vulnerable clients weren’t getting the specialist support that they need. It found that solicitors need to adapt their practices to firstly identify the needs of a vulnerable client and then to meet them. This practice note aims to support solicitors in achieving those objectives, including meeting the duties from the Mental Capacity 2005 (MCA 05) and the Equality Act 2010, as well as complying with professional regulatory requirements. The practice note focuses on three broad categories of vulnerable client [emphasis added]: •





clients who have capacity to make decisions and provide instructions, but by reason of a range of mental and/or physical disabilities require enhanced support to engage a solicitor’s services and give instructions to a solicitor sections 2 and 3 clients who lack mental capacity to make decisions and provide instructions to a solicitor, for whom a range of statutory and other safeguards must be followed - section 4 clients who are vulnerable to undue influence or duress and who may or may not have mental capacity to make decisions and provide instructions to a solicitor - section 6

© LawSkills Ltd.

Page 10

11 January 2016

Section two gives further practical guidance on identifying the vulnerable client and sets out a non-exhaustive list of vulnerability indicators including advanced age. It suggests looking out for signs of vulnerability and then identifying the client’s particular needs such as providing assistance with overcoming mobility, sight or hearing issues. Section three suggests practitioners consider how they can enable clients to access their services, looking at marketing strategy for example. It refers to providing tailored and appropriate communication in line with the ‘reasonable adjustments’ duty of the Equality Act 2010 and covers providing assistance in the course of court proceedings. Section four looks in detail at clients who may lack mental capacity, setting out the MCA 05 statutory principles and legal test for capacity to make decisions. It then goes into detail on the different mental capacity tests for making a Will, making lifetime gifts and conducting proceedings. Very useful guidance is given on how to assess capacity and covers techniques for the assessment and obtaining a medical opinion. It moves on to when a client lacks capacity to give instructions. Section five explores the role of carers and other third parties, such as attorneys or deputies, in giving instructions, before moving on logically in section six to considering influence and undue influence. It looks at the difference in when undue influence will be presumed in the case of lifetime gifts, but not for testamentary dispositions. Section seven sets out case studies to give various scenarios and how the solicitor should act in each case. It finishes with section eight providing useful signposts to further information, including guidance from charities on particular groups of clients such as those who are visually impaired. The practice note is essential reading for anyone who advises vulnerable clients of any nature, and detailed thought should be given to implementing the advice it contains. It is accompanied by an easy read guide to clients on how to use a solicitor, which you may wish to send to prospective new clients ahead of your first interview.

3.

Deprivation of Liberty

Deprivation of Liberty Safeguards (‘DOLS’) were brought into force on the 1st April 2009 under amendments to the Mental Capacity Act 2005, to protect people who lack mental capacity and are placed in settings such as residential care homes or hospitals for care or treatment, and, as a consequence of that care and treatment, are deprived of their liberty. The Mental Capacity Act 2005 (‘MCA’ 2005’) allows restraint and restrictions to be used in the delivery of that care or treatment if the care and treatment is given in the person’s ‘best interests’ (s4 MCA 2005), even though the person may not have the requisite mental capacity to give their consent. Any restrictions and restraint must be proportionate to the care and treatment given and affords health and social care professionals some protection from liability (s5-6 MCA 2005’). However, extra

© LawSkills Ltd.

Page 11

11 January 2016

safeguards are required if the restrictions and restraint used to give care and treatment deprive a person of their liberty. In addition to providing a legal framework for the procedure that social and health care professionals must follow to obtain legal authorisation to deprive a person of their liberty for their care and treatment, DOLS have three key elements:•

To protect a person who does not have the requisite mental capacity from being detained when it is not in their ‘best interests’ (‘Section 4 MCA 2005’)



To avoid arbitrary detention



To allow a person the right to challenge a decision which deprives them of their liberty

As an attorney or a Deputy do you review a donor or patient’s detention? Do you know when you should act to challenge a decision by a Local Authority or hospital to treat and detain a person in a particular way? 3.1

Cheshire West

Two high profile cases P V Cheshire West and Chester County Council and P & Q v Surrey County Council [2014] UKSC 19 brought the matter to the fore and gave clarification on the definition of deprivation of liberty. They set down what is known as the ‘acid test’. The Supreme Court ruled that a person, who did not have the requisite capacity, and who:• •

was under continuous supervision, treatment and control and who was not free to leave

was being deprived of their liberty. The Supreme Court concluded that if it was found that a person who lacked capacity and was restricted by virtue of their care and treatment, which constitutes a deprivation of their liberty, then legal authority should be sought. The authorisation may differ depending on the circumstances of the deprivation of liberty and may be by way of:• • •

a DOLS authorisation request; an order by the Court or subject to requirements under the Mental Health Act 1983

The following list of factors set out in the DOLS Code of Practice at 2.5 should be been taken into account by the Courts when considering what equates to a ‘deprivation of liberty’: •

Frequent use of sedation/medication to control behaviour

© LawSkills Ltd.

Page 12

11 January 2016

• • • • •

Regular use of physical restraint to control behaviour The person concerned objects verbally or physically to the restriction or restraint Objections from family and or friends to the restriction or restraint The person is confined to a particular part of the setting in which they are being cared for The placement is potentially unstable

Problems DOLS have been subject to a lot of criticism as they are perceived to be too technical and administratively cumbersome. The House of Lords Select Committee on the Mental Capacity Act 2005 published a report that stated that the DOLS were not ’fit for purpose’ and proposed their replacement. As a direct consequence of the Cheshire West case, which widened the meaning of deprivation of liberty to a considerable extent, there has been a huge increase in DOLS authorisation requests, which has put a considerable strain on the current system. At the end of 2014, 19,428 DOLS authorisations were made, as compared to 359 at the end of 2013. The figure will be substantially higher at the end of 2015. The safeguards are not available in all the social care settings where people may be detained. Local Authorities have been required to seek authorisation annually for deprivation of liberty in supported living and residential settings directly from the courts. This is extremely costly and burdensome for Local Authorities and Courts alike. 3.2

Law Society Guidance

The Law Society has issued a comprehensive practical guide (‘The Guidance’) on the law in relation to identifying a DOLS: http://www.lawsociety.org.uk/supportservices/advice/articles/deprivation-of-liberty The Guidance’s main focus encompasses the practical application of the legal principles in care and treatment settings in which questions of deprivation of liberty may arise. The Guidance was commissioned by the Department of Health and is there to assist professionals in health and social care as well as legal practitioners to recognise when a deprivation of liberty is apparent and show how to follow the appropriate procedures. The ethos behind the Guidance is to ensure that the mentally incapacitated who are residing in different settings do not have their freedom restricted in their daily lives. The Guidance gives really useful scenarios that frontline professionals face on a regular basis and helps identify when a deprivation of liberty may be occurring and to ensure that the incapacitated person’s rights are secured under Article 5.

© LawSkills Ltd.

Page 13

11 January 2016

3.3

Social Care Institute for Excellence (SCIE) resources

SCIE is a leading social care improvement agency. It produces practical and accessible online resources to improve the knowledge, skills and practice of care staff and commissioners, and to support co-production with people who use services and carers. The Department of Health and other agencies have commissioned SCIE to develop a range of freely available resources. The resources are all currently free for noncommercial use: http://www.scie.org.uk/publications 3.4

Law Commission Consultation Paper No 222

As a direct consequence of the House of Lords Select Committee Report and with the Supreme Court providing clarification of the definition of deprivation of liberty in the Cheshire West case, the Government requested that the Law Commission (The LC) review the legislation and guidance. An interim consultation paper was published on the 8th July 2015 and the LC is currently undertaking a full consultation process which should be completed by the end of 2016. The LC ‘s interim consultation paper highlights that there is a compelling case for DOLS to be replaced. The LC has suggested that the term ‘Deprivation of Liberty Safeguards’ is discarded and proposed that the potential new scheme should be named ‘protective care’.

4.

Care Act 2014

It is fair to say that the legislation in relation to the provision of community care had become hideously confusing and complex so it was welcome that the Coalition Government appointed an independent Care & Support Commission to review the issue of sustainable funding for long-term care and that the Law Commission undertook further work on reform of the law on adult social care. The result is the Care Act 2014 which aims to consolidate the existing legislation and at the same time develop new concepts, particularly with regard to funding care. The Care Act provides a framework within which the new system will operate but the details are set out by: •



Regulations which can be introduced by the Secretary of State. In fact the regulations (of which there are currently 22) were published after extensive consultation in final form on 23 October 2014; and Guidance (to replace CRAG) which can be found at https://www.gov.uk/government/publications/care-act-2014-statutoryguidance-for-implementation

There are also some simple fact sheets on www.GOV.uk, published by the Department of Health.

© LawSkills Ltd.

Page 14

11 January 2016

The Care Act 2014 received Royal Assent on 14 May 2014 and some of the provisions came into effect on 1 April 2015. It was intended to come fully into force by 1 April 2016. However, following the election the Government announced it was to postpone the care cap due to come into effect in April 2016. It is not likely to be implemented until April 2020, if at all. Local Authorities lobbied the government to use the allocated funding for the care cap as a means of plugging the current shortfall in long-term social care costs instead. The care cap has received much criticism, in any event, being set at over twice the limit recommended by the Dilnot Inquiry. Less well known is that other aspects of the Act were also delayed such as provisions forcing Councils to support self-funding users of residential care and provisions requiring Councils to apply a more generous means test. The Act is divided into five parts with the key provisions consolidating the community care legislation being contained in part 1. Part 2 focuses on care standards; part 3 on health; part four on health and social care through the integration fund and part 5 containing some general administrative provisions such as the ability of the Secretary of State in s.125 to make regulations and orders. A review conducted by the Public Accounts Committee said: “The Department of Health has taken a collaborative approach to the first phase of the Care Act, working with local authorities to plan its implementation. However, we are concerned that carers and the people they care for may not get the services they need because of continuing reductions to local authority budgets and demand for care being so uncertain. We are also concerned about the government’s ability to identify individual local authorities that are struggling and to respond quickly enough. The decision to delay implementation of Phase 2 of the Care Act means that people will have to pay more for their care for longer before the cap on care costs is finally implemented. Given the tough financial context, we were pleased to hear, though, that government will not claw back the £146m of funding it provided to councils in 2015–16 to prepare for Phase 2.” 4.1

What’s in force?

The key provisions contained in part 1 of the Care Act 2014: General responsibilities of local authorities – ss 1 – 7 s.1(1) provides for a new concept in community care – it imposes a general duty on a local authority in the case of an individual to promote that individual’s well-being. We are told that this will not be a directly enforceable right but will be considered in judicial review proceedings. ‘Well-being’ in relation to an individual includes matters relating to their personal dignity, physical and mental health and protection from abuse and neglect.

© LawSkills Ltd.

Page 15

11 January 2016

In exercising their functions under the Act a local authority must have regard to the checklist of items in s.1(3) of the Act which in essence focuses on the importance of putting the individual at the centre of all decision-making and encouraging their participation in decision-making. The local authority must provide or arrange for the provisions of services, facilities or resources or take other steps which will help prevent or at least delay the need for care and support by adults (i.e. persons aged 18 or older) and their carers in their geographical area – s.2. Regulations may permit a local authority to make a charge for these services etc – s.2(3). It is a requirement of s.3 that a local authority must exercise its functions with a view to ensuring the integration of care and support provision with health provision and health-related provision. Section 4 requires local authorities to establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and carers. This must be accessible and proportionate to a person’s needs. This includes identifying those who would benefit from financial advice on matters relevant to meeting of needs for care and support and signposting them to independent financial advice. Meeting & assessing needs for care – ss 8 – 13 Section 8 sets out examples of what might be provided to meet needs and the ways in which the local authority might meet them e.g. by arranging for an outside body to provide the service. s.9(1) replaces the duty to assess in s.47 National Health Service & Community Care Act 1990: Where it appears to a local authority that an adult may have needs for care and support, the authority must assess (a) Whether the adult does have needs for care and support, and (b) If the adult does, what those needs are. This needs assessment must involve the adult, any carer and any person whom the adult asks the authority to involve – s.9 (5). It must include an assessment of the impact of the adult’s need for care and support on his ‘well-being’; the outcomes that the adult wishes to achieve in day-today life and whether and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes – S.9 (4). The Act also requires the local authority to assess whether a carer has need for support or is likely to do so in the future – s.10(1). This ‘carer’s assessment’ must be carried out regardless of the view of the authority as to the level of need the carer has for support or the level of the carer’s financial resources. The authority must have regard to whether the carer works or wishes to do so and whether the carer participates or wishes to participate in education, training or recreation.

© LawSkills Ltd.

Page 16

11 January 2016

This new duty will significantly increase the number of assessments which a local authority is required to carry out at present – the Government’s own predictions are it will generate a million more new assessments each year. Both the adult and carer assessments must be made in writing and a copy must be provided to the adult or carer to whom the assessment relates – s.12(3) & (4). s.13 provides for regulations to set out the national eligibility criteria. Charging & assessing financial resources – ss 14 -17 These sections permit local authorities to charge for meeting the needs and also charge for putting in place the arrangements for meeting needs. The power to charge is however, subject to the much hyped cap on care costs, now postponed until 1 April 2020. The cap is a restriction on the amount that a person can pay in care costs over the course of their lifetime. The Government intended that this level would be set at £72,000 when it was envisaged it would be introduced in April 2016 but obviously now it has been delayed a new figure will eventually emerge. If and when the cap comes into effect the intention is that whatever the starting amount it will be reviewed annually. The cap does not include what are referred to as ‘living costs’ such as utility bills and food so that there will be consistency between those living in care and those living at home and enjoying domiciliary care. The Government proposes that these living costs would be set at £12,000 per year from April 2016. In order to ensure that no-one pays for care over and above the lifetime cap the local authority will have to keep care accounts for each person for 99 years or until the user’s death! As now, if the local authority determines that some of the costs of providing care and support to the adult will be charged for them it must conduct a financial assessment (s.17 (1)) and provide a written copy to the adult – s.17(6). Duties & powers to meet needs – ss. 18 – 23 Section 18 replaces ss 21(1) & (2) and s. 29(1) National Assistance Act 1948, s.2(1) Chronically Sick and Disabled Persons Act 1970 and s.45(1) Health Services and Public Health Act 1968. It imposes on a local authority a duty to meet the eligible needs for adults when the adult is ordinarily resident in its area; and • • •

either their financial cap has been reached; or, the authority is not permitted to or has decided not to charge for services; or the adult’s financial cap has not been reached but their resources are at or below the financial limits set in the regulations; or their resources are above the limits but they have asked the authority to arrange their care or they lack capacity to arrange their care and there is noone else able to do so.

© LawSkills Ltd.

Page 17

11 January 2016

There is a power in s.19 to meet the needs if s.18 is not in play and for other circumstances like urgent cases. S. 20 contains a similar duty and power in relation to carers. Next steps after assessment – ss 24 – 30 Care and support plans must be prepared in cases where a local authority is required to meet the needs of adults and carers under ss18 or 20 or chooses to do so under s.19 or 20. Such plans must set out the needs identified and to what extent the needs meet the eligibility criteria. It must include the personal budget for the adult concerned (even if the person does not want the local authority to meet the care costs) and advice and information about what can be done to meet or reduce the needs in questions and what can be done to prevent or delay the development of needs for care and support. Personal budgets are a statement which specifies the cost to the local authority of meeting the adult’s needs and the amount which, on the basis of the financial assessment, the adult must pay towards the cost, and if, and on what basis the local authority must pay towards that cost, the contribution which it must pay – s.26. Section 27 requires local authorities to keep care and support plans under review. Direct payments – ss 31 – 33 These sections provide that an authority must make direct payments in respect of a personal budget to the adult (if they have capacity) or the authorised person looking after their affairs (if they lack capacity) or to a person nominated by the adult. Deferred payment agreements – ss34 -36 Since October 2001 local authorities had the discretion to enter into ‘deferred payment arrangements’ with care home residents to effectively lend money by the payment of the costs of that person’s care without the adult’s home having to be sold in their lifetime to pay for residential care. This was not something offered in every area. The Act assumes that adults will be offered deferred payment agreements as a matter of course. However, it is expensive! Safeguarding adults at risk of abuse or neglect – ss.42- 47 Within a local authority area the authority has a duty to enquire into the level of care provided where it has reasonable cause to suspect an adult has needs for care and support and is at risk of abuse or neglect – s.42. The local authority must make or cause to be made whatever enquiries it thinks are necessary to enable it to take action. For this purpose ‘abuse’ includes financial abuse and is defined as: (a) Having money or other property stolen (b) Being defrauded

© LawSkills Ltd.

Page 18

11 January 2016

(c) Being put under pressure in relation to money or other property and (d) Having money or other property misused. Guidance and key regulations The Care & Support Statutory Guidance was issued by the Department of Health in October 2014 and is over 500 pages long. https://www.gov.uk/government/publications/care-act-2014-statutoryguidance-for-implementation This replaces CRAG from 1 April 2015 for situations arising post that date. Additionally, the key regulations which came into force on 1 April 2015 are: • • • • •

The Care & Support (Assessment) Regulations 2014 The Care & Support (Eligibility Criteria) Regulations 2014 The Care & Support (Charging & Assessment of Resources) Regulations 2014 The Care & Support & Aftercare (Choice of Accommodation) Regulations 2014 The Care & Support (Deferred Payment Agreements) Regulations 2014

There are a number of other Regulations (over 22) which were laid before Parliament and which came into force at the same time. It is necessary to read the legislation, the Guidance and the relevant Regulation when deciding on the relevant law and Guidance to meet your client’s particular needs. 4.2

What’s postponed?

Letter The postponement of the introduction of the care cap from its original date of 1 April 2016 was announced in a letter by Alistair Burt on 17 July 2015 – see https://www.gov.uk/government/publications/delay-in-the-implementation-of-the-cap-oncare-costs

Written Statement This seems to have been backed on the same day by statement in the House of Lords by Lord Prior of Brampton (The Parliamentary Under Secretary of State, Department of Health) – see http://www.parliament.uk/business/publications/written-questions-answersstatements/written-statement/Lords/2015-07-17/HLWS135/

There is also a: Briefing paper http://researchbriefings.files.parliament.uk/documents/CBP-7265/CBP-7265.pdf

Although the postponement of the introduction of the care cap received some publicity it is perhaps less well known that the appeals system for care and support provided for or arranged by Local Authorities has also been postponed.

© LawSkills Ltd.

Page 19

11 January 2016

Where care home accommodation is assessed to be required there is a delay to implementation of s.18 in so far as it creates a duty to meet needs by providing or arranging care home accommodation. S.18(3) read with s.18(1) gives people with assets above the financial limit the right to have their eligible needs met by the LA. A consultation in the early part of 2015 highlighted significant concerns about the resources required to do this and more work is therefore required to assess the impact on the social care market of this provision. So its implementation is delayed until 1 April 2020. For other types of care and support s.18 commenced on 1 April 2015. There is a review system for NHS assessments which are supposed to be undertaken before a patient is discharged from hospital under Care & Support (Discharge of Hospital Patients) Regulations 2014. If those Regulations are not complied with the patient or their attorney can implement the NHS Review procedure which allows them and the multi-disciplinary team to participate in and instigate an independent review (if the appeal is flawed) or even apply to the Parliamentary & Health Services Ombudsman in certain instances. Once the patient leaves hospital without a continuing health care plan or NHS funded nursing care package the Local Authority becomes responsible for organising further care. At this point it is unlikely the NHS Review Procedure could be used to challenge any care provided or the decision as to who pays for it. The delay to the introduction of Part 2 of the Care Act 2014 means Local Authorities have five more years to put in place a robust appeals system equivalent to the NHS Review System. However, it also means five more years without the same rights to challenge decisions made post discharge. What should lawyers note? Lawyers should: a. Check that an individual is assessed separately from their carer and both needs are ascertained without pooling resources under the new rules for new cases from 1 April 2015 b. Familiarise themselves with the details of the Regulations and the Guidance. In particular know which services must be provided free of charge; which services their particular LA may provide free of charge or for a nominal fee; and the statutory financial limits for contribution to the cost of care. c. Study the rules for the deferred payment agreements, which differ from what was available previously, and reflect on the suitability of this option for particular clients who have to pay for care – it is much more expensive now. d. Consider the firm’s own services and ensure LAs are made aware of these since LAs should engage with local providers about paid for as well as free services available to which individuals and their carers may be sign posted. e. Raise awareness about the changes. f. Familiarise themselves with the way LA present care and support plans and consider if and in what way these may need to be challenged to benefit clients.

© LawSkills Ltd.

Page 20

11 January 2016

5.

Recent cases

Complex arrangements in an LPA can be OK (although highly impractical!) – XZ v OPG [2015] EWCOP 35 In this case the Public Guardian (PG) refused to register a Lasting Power of Attorney (LPA) with 8 pages of carefully drafted complex restrictions and conditions. He took the view that most of them were ineffective and should be severed. The solicitors asked the court to determine the question and Lush SJ disagreed with the PG. He found the conditions to be impractical rather than ineffective and so the LPA was ordered to be registered. Impracticality is not a reason for refusing to register an LPA. Interestingly, the donor’s case was helped by a provision in the new LPA forms effective from 1 July 2015. Although this case looks at first glance as a victory for the donor, he has put in place an LPA which is essentially impractical. Revocation of an LPA when attorneys don’t pay care fees – Re GW [2015] EWCOP 9 Where a son failed to pay his father’s nursing home fees and personal allowance for over 30 months Lush SJ was strikingly clear that this was most often an indication of more serious mismanagement of the donor’s finances. Failing to provide the OPG with an account of his dealings was enough reason alone to order the son’s removal as attorney. All of the failings were within the son’s control; his behaviour contravened his authority and was not in his father’s best interests. Lush SJ had no hesitation in revoking the Lasting Power of Attorney (LPA) which appointed the son as his father’s attorney. PG’s application for EPA revocation denied – Re DT [2015] EWCOP 10 This case involved a difficult balancing act by three sons looking after the finances of their father (the donor) and their mother who was having to live separately from him for her safety. Unusually Lush SJ dismissed the Public Guardian’s (PG’s) application for the revocation and cancellation of the registration of an Enduring Power of Attorney (EPA). Lush SJ stated he was not satisfied that the revocation and cancellation were proportionate, were less restrictive of the donor’s rights, respected the donor’s rights, warranted public interference in the donor’s private and family life and was in his best interests. The father wanted his sons to continue. Unauthorised gifts - Revocation of Lasting Power of Attorney for Property and Financial Affairs – Re EG [2015] EWCOP 6 This was an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs because the attorneys made gifts which far exceeded the limited authority to make gifts conferred by section 12(2) of the MCA 2005. The attorneys should have applied to the Court of Protection for an order under section 23(3)(4) of the MCA or 23(4) for an allowance for the main carer (the daughter) in view of the fact that she had given up her job to care for her mother. It is likely that the Court would have been sympathetic and awarded her an allowance from her mother’s funds. This would have been treated as a voluntary payment and not taxable in the hands of the recipient.

© LawSkills Ltd.

Page 21

11 January 2016

The question of making equal provision for the sons would not then have arisen as they had not suffered economic loss in caring for their mother. Revocation of a Lasting Power of Attorney (animosity of attorneys) – Re EL [2015] EWCOP 30 When two attorneys reach such a level of animosity that they fail to reach any consensus on any decision or fail to share information with each other it leads to a lack of management of the donor’s financial affairs. This is true even when they are appointed jointly and severally as was clearly demonstrated in this sad case. It will not be in the donor’s best interests if they cannot be trusted to act for the purposes for which the LPA was intended. Unsurprisingly making large gifts to themselves from a bank account will show a contravention of their authority and lead to the LPA being revoked. Revocation of Lasting Powers of Attorney for Property and Financial Affairs contested application for appointment of Deputy – Re SB [2015] EWCOP 7 This case demonstrates the need for care in taking instructions to make LPAs when the person to be appointed has organised the making of the LPA. It also shows that persons who are not family members may be well placed and suitable to act as the patient’s Deputy if the LPA is revoked even if this has to be a joint appointment with a solicitor.

© LawSkills Ltd.

Page 22

11 January 2016