Long-Term Care & the Private Client Lawyer

 In Elderly/Vulnerable Client

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Long Term Care planningTraditional private client practitioners may not consider that long-term care is an area where they can add value as it does not neatly encompass inheritance tax planning or estate administration – two mainstays of the private client practitioners’ work areas.

However, with an ever-ageing population – many of whom are at risk of developing life-limiting illnesses such as dementia, what role does the private client lawyer have? Unsurprisingly, many of the tools available to those dealing with tax planning also have a role in planning for long-term care and mental incapacity.

While most people would prefer to remain and receive care in their own home, irrespective of any physical or mental infirmity, in practice this can be very costly. Assistance available from the local authority will depend on the extent of established care needs and eligibility criteria. With each local authority having different criteria, many older people, their family and carers, will need to consider several variables if long-term care is on the horizon.

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Residential and nursing home charges depend on the nature and level of care provided, the location and facilities of the home. The same applies to care supplied at home. If long-term care is contemplated, important decisions need to be made. These decisions may have unintended ramifications and encouraging clients to take specialist advice at an early stage can prevent or mitigate problems arising later. This is where the private client lawyer can provide valuable assistance with questions such as:

  • Will there be any assistance towards care fees?
  • Are there any financial benefits available?
  • What assets will need to be sold and how are they valued?
  • Should existing Wills and powers of attorney be reviewed?
  • Can a spouse, partner or other relative continue living in the family home?
  • Who is required to pay for the care?

How is care funded?

There are only limited situations where someone does not need to pay for their care. It is important for the private client lawyer to be aware of when care has to be paid for so that assets are not unnecessarily sold or considered for means testing. Care is means tested when someone is assessed as having over £23,250 capital (in England) and £50,000 (in Wales). So, for many, paying for care is a reality that needs to be faced, but there are some exceptions to this, set out below.

NHS Continuing Health Care Funding

If someone is deemed to have care needs that are first and foremost health care needs, then NHS Continuing Health Care Funding should be provided which will cover all care needs. As with all NHS resources, this comes from a limited budget and is not easy to obtain for clients. However, it should not be discounted as unavailable as even a negative assessment can form a ‘line in the sand’ for a future assessment. This latter assessment may be successful, as it will be easier to see what deterioration there has been which may mean that someone’s needs who have been assessed as means tested social care needs may then become health related and therefore non-means tested.

Challenging negative decisions is increasingly a specialist service. If you or your clients wish to challenge any NHS decisions Gregg Latchams may be able to help so do get in touch with Heledd Wyn (contact details below).

Intermediate care

If a placement in a care home has been arranged as part of a package of intermediate care (sometimes known as rehabilitation or reablement care) care will be free where a client is receiving short-term therapy or treatment (for example following a period in hospital). This is, however, time limited and not normally longer than six weeks. This can often be enough to allow someone to regain their independence.

Aftercare services

If a client has previously been detained in hospital under Section 3 of the Mental Health Act 1983 for treatment their residential care may be provided for free as aftercare under Section 117 of that Act. Section 3 allows for the detention of an individual for treatment in hospital based on certain criteria and conditions being met. There is no automatic time limit for the time that someone can be detained  under this section. For those who are sectioned under Section 2, they can be kept in hospital for a period to 28 days, which gives the medical professionals time to decide:

  • what type of mental disorder an individual has,
  • whether they need any treatment, and
  • how that treatment will affect their health.

Self-Funding Care

Once all avenues of free care have been explored, if a client’s care needs are not covered by the above exceptions, they will need to fund the cost of their care, which will be means tested. If a client’s capital is over the threshold, they may still be eligible for help towards these fees in the following ways:

  • Applying for attendance allowance/disability living allowance – these are not means tested so should be applied for wherever needed. This is paid at two different rates (Lower rate – £58.70 and Higher rate – £87.65) and is paid directly to the person who is in need of care, rather than their carer.
  • The NHS can make a contribution towards the nursing care provided by a registered nurse, generally where the client is receiving care in a registered nursing home (Funded Nursing Care). In England, this is currently £158.16 a week.

With both of these payments, it can mean that:

It is only when the client does not have enough resources that they will get help from the local authority. The local authority will only pay up to a “standard” amount and often there is a shortfall and families can be asked to pay a third-party top-up.  Before any sort of agreement is entered into, legal advice should be taken as to whether this is desirable or practical.

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