If someone has a lack of mental capacity, it means they are no longer able to make their own decisions.
Someone may be lacking capacity because of an illness or disability, a mental health problem, dementia, or an accident.
In this situation, either your long-held wishes could be unknown, ignored or you might be subject to financial abuse.
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Taking Back Control Of Important Decisions
What is lack of capacity?
If a person is deemed to be ‘lacking capacity’ they will not be able to do one or more of the following:
- Understand information given to them about a particular decision
- Remember that information long enough to be able to make the decision
- Use the information available to make the decision
- Communicate their decision
If someone is lacking mental capacity and also has care needs, there are a number of important issues you need to consider. For example:
- Does the person have a Health and Welfare Lasting Power of Attorney in place? If they do, are their Attorneys acting to ensure social services or the NHS are not ignoring the person’s wishes
- Do you need to apply to the Court of Protection?
- Are there safeguarding issues that need to be addressed?
- Will your relative be eligible for non-means tested care, such as NHS CHC, or will they have to pay for care home fees?
- Do they qualify for free care under Section 117 rules?
If your relative has care needs but lacks mental capacity and decisions are being made which you don’t agree with – you need to speak to us.
My relative has dementia and care needs
Am I right in presuming that because they paid tax all their lives, the NHS will for care arising from this illness?
Sorry – no!
If your relative has dementia and care needs, you may be surprised to learn that they do not automatically qualify for free, non-means tested care.
If you think that’s unfair – we agree!
At Steene Law, our solicitors have personal, first-hand experience of looking after with a parent with dementia.
We understand the hugely difficult and often challenging behaviour of a relative with dementia.
Although each dementia journey is different many of the stories we hear from relatives are the same: the feelings of isolation, guilt and exasperation, along with anger, depression and sleeplessness.
What we do
We help family members caring for people with Alzheimer’s and other forms of dementia and age related conditions that cause memory loss. We know that many relatives receive insufficient or inaccurate advice on care funding.
If you are not sure what help is available to care for your relative who is suffering from increased memory loss, a stroke, dementia or other conditions that affect the body and mind, you need to speak to the experts at Steene Law.
We are not your average solicitors – our unique knowledge of law, social services and medicine means we have a high success rates in helping people with dementia get the care fee funding that they rightfully deserve.
We can do the same for you.
- Are you worried about care home fees and NHS Continuing Health Care (CHC)? Call us!
- Has your relative undergone an NHS health assessment and been told they do not qualify for CHC? We fight and win!
- Have they been told they will have to use their savings or sell their home to pay for their care? Not true! – Get in touch with us to find out the facts.
If your relative has dementia and care needs – you need to speak to us.
Call our expert team now for a FREE conversation on 0203 653 0623.
What should I know about Liberty Protection Safeguards?
Liberty Protection Safeguards (LPS) – currently calleds DOLs – are a type of assessment, carried out when a person does not have the mental capacity to make decisions about their own care, for example if they are living with dementia.
LPS will replace Deprivation of Liberty Safeguards (DoLS) which has been criticised for being too complex.
LPS, and DoLS, are meant to ensure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.
LPS, and DoLS before it, are meant to ensure that people are only deprived of their liberty when it is in their best interest, for example, to keep them safe.
If your relative has dementia and lacks mental capacity, it can be a tricky balancing act to ensure their safety whilst making sure their dignity and human rights are not ignored.
Nursing homes don’t always get it right. An example is the use of locks or key pads to stop residents going outside or into different areas of a building.
Such measures might be appropriate if someone with advanced dementia is at risk of wandering across a main road.
But, if those same key pads and locks mean they cannot get out of their room or enjoy some fresh air in the garden whenever they choose, this could mean their liberty is not being protected.
If your relative has dementia or lacks mental capacity and you are concerned about DoLs or Liberty Protection Safeguards, you need to speak to us.
Call our expert team now for a FREE conversation on 0203 653 0623.
What do I need to know about the Court of Protection (CoP) and the Office of the Public Guardian (OPG)?
The Court of Protection (CoP) makes decisions about financial or health and welfare matters, for people who can’t make decisions for themselves because they ‘lack mental capacity’.
As the name suggests, the CoP is an actual court and, as you might imagine, the process of going to court to obtain a decision about a relative’s care can be expensive, time-consuming and stressful.
The good news is that if your relative has already put in place a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) for finance and health and welfare, you may not need to go to the Court of Protection.
If your relative does not have an LPA or EPA, or they don’t cover the situation or dispute, you will need to apply to the CoP to be become a Court-Appointed Deputy.
If you need to apply to the Court of Protection, it can be very helpful to know more about the process and the steps you can take, in the interim, to ensure your relative’s property, finances or care needs are properly looked after.
Court of Protection Disputes
There are a number of reasons why you might need to seek help from the Court of Protection to sort out a dispute.
Disputes relating to mental capacity
There is a two part test to decide whether a person has mental capacity:
- A person has a disability, condition (e.g. dementia) or has suffered a trauma that affects the way their mind or brain works
- As a result they are unable to make a specific decision, at the time it needs to be made.
The second part of the test is quite difficult to measure. On the surface, your relative might appear to be able to make decisions but when you look more closely their decision making might be flawed and may be at odds with their previously held views and wishes.
Here’s an example – it’s not real but it illustrates the point well:
You can also check out the test for mental capacity here.
Sometimes the decision regarding mental capacity is made by the care provider at the time. If you feel the assessment is wrong and you disagree with their findings, you can challenge the decision and if an agreement cannot be reached the CoP will be asked to intervene.
Disputes relating to the appointment of an Attorney
If your relative is being encouraged to make an LPA and you believe they have already lost mental capacity, or you feel the proposed Attorney is unsuitable you can raise an objection.
Equally, if you feel that an appointed Attorney is not acting in your relative’s best interests there may be grounds to dispute their actions.
If an Attorney is acting inappropriately or not carrying out their duties there could be grounds to cancel the power of attorney completely or have them removed as an attorney.
You will be expected to present evidence to support your allegations so is you are concerned about the actions of an Attorney or a proposed LPA, you need to speak to us.
Call our expert team now for a FREE conversation on 0203 653 0623.
The Office of the Public Guardian (OPG) – what do I need to know?”
The Office of the Public Guardian (OPG) protects people who may not have the mental capacity to make decisions about their health and finance for themselves. All Lasting Power of Attorneys are registered with the OPG.
The OPG is an agency of the Ministry of Justice. It works in tandem with the Court of Protection. If you have a concern about a vulnerable person who may lack mental capacity, the issue will first be raised with the OPG. They will investigate and, if necessary refer the matter to the CoP who will make hear the dispute and make a judgment.
If someone has raised a concern about your conduct as an Attorney and you have received a letter from the OPG, you need to speak to us.
Equally, if you are concerned about the actions of someone who is acting as an Attorney, call us and we will give you now for a now for a FREE conversation on 0203 653 0623and we’ll explain the steps you need to take.
Putting in place a Lasting Power of Attorney – why is it so important?
Everyone should have a Lasting Power of Attorney. We are all now generally living longer so it makes sense to plan ahead just in case there comes a point when we are no longer able to make decisions about our money or the care we need.
If you are caring for a relative who still has mental capacity it is really important to encourage them to make an LPA.
By making an LPA now they are able to choose who will have the legal authority to manage their affairs and speak on their behalf if, in the future, they lose the capacity to do so because of physical illness, frailty or as a result of mental health issues.
If your relative doesn’t have an LPA and they lose capacity to manage and their property and financial affairs, an application will have to be made to the Court of Protection. This can be both time consuming and expensive.
If your relative does not have a Health and Welfare LPA in place, we believe the consequences are even more serious.
Without a Health and Welfare LPA, any decisions about their care could be dealt with by medical staff and whoever is on duty at the local Social Services office.
If you think that, as the next of kin, you are automatically entitled to a final say in their care, then think again! The only way to ensure you are able to speak on your relative’s behalf, is to be their legally appointed Attorney.
Whenever we speak to someone about their relative’s care needs, the first question we ask is ‘have they got an LPA in place?’ Our advice is always, if your relative still has mental capacity, sort out an LPA now before it’s too late.
If you need more information about LPAs, call our expert team now for a FREE conversation on 0203 653 0623.
Lasting Power of Attorney – when a dispute threatens to tear the family apart
You thought you were doing the sensible thing all those years ago, when you set up a Lasting Power of Attorney(LPA) for your parents.
Now, your mum has dementia and because you have Power of Attorney you’re trying to manage her financial affairs.
But now you’re under scrutiny – a relative has made a complaint and you are being investigated by the Office of the Public Guardian.
At Steene Law we’re on your side. We understand how upsetting LPA disputes can be.
We can help you gather evidence to prove that you have acted lawfully and help you successfully bring the dispute to a conclusion so that you can get on with caring for your relative without accusations of financial imprudence hanging over you.
What is a Statutory Will?
In order to make a valid Will, a person must have mental capacity – also known as ‘testamentary capacity’.
If your relative no longer has mental capacity a Statutory Will can be made but an application to the Court of Protection may be necessary.
There may be several reasons why a Statutory Will is needed:
- The person has not made a will before
- The person has high value assets which need to be protected
- A property left in a previous will is no longer valid
- The beneficiaries named in a previous Will have died
- A current or previous Will has not made sufficient provisions for a relative who is providing their care
If you are concerned that a relative who lacks mental capacity needs to make or change a Will, you need to speak to us.
Call The Care Fees Specialists Now
Steene Law specialise in Care Home Fees, especially protecting you from having to sell a property to pay for care home fees.
We are available from 8am to 7pm, 365 days of the year and will explain your options including how you can fight an unfair LPA challenge.
“I cannot thank David and Dianne enough for the effort and knowledge they displayed helping me deal with my Grandfather’s care and the subsequent legal battle that came with it.
I had a complicated and, to me, bizarre yet worrying situation that David and Dianne both worked tirelessly on.
My Grandfather was a WWII veteran and was neglected and treated as a statistic by a care home and a rather unforgiving council.
I’m grateful that David and Dianne not only got the result I needed, but made it simple to understand and took away a lot of stress. I have recommended them to many others and will continue to do so. Forever grateful!”