Care Home Fees and Capacity

Published on 4 Aug 2023

When do you need to pay for residential care?

There are many reasons why yourself or a loved one may have to move into residential care, sometimes this is the only place where that person’s needs can be met properly. Whatever the reason may be, a big consideration will be how to fund that care.

In England and Wales, quite often residential care is not free, and may have to be funded in part or in full by the person who needs the care. In order to assess what level of care you need, and how much you are required to contribute, the local authority should carry out two tests: a care needs assessment and a financial means assessment.

If you are required to pay for care, you will then have to consider how to access the funds to pay for the care.

How do you pay for residential care?

If you are required to pay for care and you have capacity, then you should be able to access your funds, liquidate investments or sell properties in order to fund that care. If you are concerned, however, that you might lose capacity in the future, but you currently still have capacity, then it can provide great reassurance to you and your loved ones if you make a lasting power of attorney (LPA).

Making an LPA is where a person, who currently has capacity, can make the decision to elect one or more people to manage their property and affairs and/ or health and welfare on their behalf as attorney(s), in the event that they lose capacity. This is a special legal authority for other people to act on your behalf. So, for example, if you went into residential care, but then lost capacity, the attorney(s) would be able to take over making payments for care and make any necessary arrangements, under the powers given to them in the LPA, to make funds available, such as by selling a property to release funds. At Lanyon Bowdler our Private Client Team can assist you with making an LPA.

However, if you are at a stage where the person who has gone into residential care does not have capacity, then the person without capacity will not be able to make an LPA. Their loved ones may then find themselves in a state of limbo where the person without capacity is not able to pay the fees themselves or make fees available, but equally nobody else has the legal authority to do so on their behalf. In this event, you can make an application to become a deputy. Family members or friends of the person without capacity, or a solicitor can apply to become that person’s deputy. This involves an application process to the Court of Protection, a specialist court which was set up for the purpose of dealing with people who lack capacity.

If the application to the Court of Protection to become deputy is successful, then a deputyship order will be issued by the Court, and this will set out the powers the deputy has. These powers are usually very similar to the powers of an attorney, and will usually enable the deputy to pay the care fees of the person without capacity on their behalf, access their bank accounts to make money for spending available and, depending on the contents of the order, to sell assets or property in order to fund the care. On occasion special permission must be sought from the Court to sell property. This will mean that despite not having capacity and not having made an LPA, the person without capacity will have their care funding needs met, and someone can manage their affairs for them.

At Lanyon Bowdler, we have an expert team who specialise in Court of Protection matters, including myself, who will be able to give specialist and tailored advice for you and your loved ones circumstances. Our team are ranked nationally as being leaders in this area of law in the prestigious legal directory The Legal 500. If you or your loved ones would like to speak to someone to find out how we can help, please feel free to get in contact.

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