This article was first published in the September edition of PS magazine, which can be found in the Private Client Section of the Law Society website, and has been reproduced with their kind permission.
Practitioners acting as a Professional Attorney or Deputy, and especially where there are no family members, will sometimes be faced with the responsibility of placing an elderly person into care.
In England, the duty to assess an adult who may have needs for care and support arises under the Care Act 2014, s9. Overarching Care and Support Statutory Guidance on assessments, eligibility, financial assessments and care planning was published in October 2014. A similar duty to assess arises in Wales, under the Social Services and Well-being (Wales) Act, s19. This came into force on 6 April 2016. Once an assessment has been carried out, a care plan will be provided which should make clear what options are available and what may be the most appropriate based on the client's needs.
If the responsibility of choice of care home falls onto the professional then there are some practical considerations to consider
- Check the most recent inspection report to see how the care home is doing, to ensure there are no concerns. Reports are available on the Care Quality Commission website.
- Consider the location of the care home. Is it near family and friends? What is the local area like? Are there shops or leisure facilities available?
- What arrangements are there for visitors? Are residents able to come and go as they please (as long as it is safe for them to do so)? Will there be outings arranged?
- How will you be able to communicate with the staff? Are there any support groups for the client?
- If safety and security may be issues for the client, then what supervision can the care home provide?
- Will the care home meet the specific religious, ethnic, cultural or social needs of the client?
- Will the correct diet be provided?
- Will the right language be spoken?
- Do they allow pets? (See later).
The NHS provide guidelines for care homes and advise as follows:
A good care home will:
- Offer new residents and their families or carers a guide (in a variety of accessible formats) describing what they can expect while they are living there.
- Have staff who have worked there for a long time, know the residents well, and are friendly, supportive and respectful.
- Employ well-trained staff, particularly where specialist care such as dementia nursing is required.
- Involve residents, carers and their families in decision making.
- Support residents in doing things for themselves and maximising their independence.
- Offer a choice of tasty and nutritious food, and provide a variety of leisure and social activities taking residents' needs into account.
- Be a clean, bright and hygienic environment that's adapted appropriately for residents, with single bedrooms available if required.
- Respect residents' privacy, modesty, dignity and choices.
- Be accredited under the Gold Standards Framework for end of life care.
An unsatisfactory care home might:
- Have a code of practice, but not adhere to it.
- Fail to take into account residents' needs and wishes, with most decisions made by staff.
- Let residents' care plans become out of date, or fail to reflect their needs accurately.
- Have staff who enter residents' rooms without knocking, and talk about residents within earshot of other people.
- Deny residents their independence by not allowing them to feed themselves because "it takes too long".
- Have staff who don't make an effort to interact with residents and leave them sitting in front of the TV all day.
- Be in a poorly maintained building, with rooms that look all the same and have little choice in furnishings.
- Need cleaning, with shared bathrooms that aren't cleaned regularly.
There are other practical considerations in ensuring a smooth transition from home to a long term care environment.
The Professional Deputy Standards (the Standards) issued by the Office of the Public Guardian in July 2015, impose a number of duties and responsibilities on those who will have to look after a client's property once they have moved into long term care. If you have been looking after the client for some time then you should be aware of the ownership of the property. If not, then Section 1 c (1) of the Standards advises that you need to determine the ownership entry recorded at HM Land Registry, by obtaining office copies, to ensure that you know how the property is held, especially if it is held jointly so you can ascertain if it is a joint tenancy or a tenancy in common.
1 c (2) puts an obligation on the Professional Deputy to gain access to the property and to carry out a visit to ensure it is secure. The Standards say that there should be a record of when this was carried out, and who was consulted before entry (eg the client). If you are responsible for the keys make sure that these are held securely at the office, usually in the office safe. Section 1 (d) of the Standards is worth setting out as a practical reminder of the further steps that need to be taken and for which you will have to account to the OPG:
"1 d (1) Ensure that the property is secured and maintained appropriately." You will have to have a record of letters and expenditure and will also need to keep a record of regular property inspection visits.
"1 d (2) If let, ensure the correct legal tenancy agreement(s) are in place and maintained. Consider seeking specialist property law advice if required." A copy of the tenancy agreement will be essential and if it is intended to let the property out, in order to produce an income for the client (and to help offset care fees) then the terms of the agreement will have to be checked to ensure that the tenancy agreement allows for sub-letting, and the consent of the landlord may also have to be obtained.
"1 d (3) If let, take reasonable steps to ensure that tenants maintain the property in good order and take appropriate action if they are in breach of the tenancy agreement." As a Deputy you will be required to have a record of any visits to the property and a note of any discussions held with the tenants in line with the tenancy agreements.
"1 d (4) Undertake regular reviews of the client's needs and undertake an evaluation of the decision to let or sell as appropriate." The Standards advise that a record of property reviews will have to be kept and a record of any best interest decisions made. If there are valuations of the property undertaken then these will have to be kept, too.
"1 d (5) If selling the property, prepare the property for sale, engaging an agent and obtaining a minimum of three separate valuations." Once the valuations have been obtained a record of the decision that is made on the asking price will have to be recorded and also there will have to be a record made of any offers considered.
"1 d (6) Ensure appropriate buildings and contents insurance are in place and familiarise yourself with the terms of the policy." Make sure that a copy of the insurance policy schedule and certificate are available. Most Insurers will insist on extra conditions being applied to the policy once they know the property is empty and unoccupied. Some will charge a premium as well, especially if they agree to cover the property beyond its renewal period. Some Insurers will only agree to cover the insurance until the time of renewal, and then further appropriate insurance will have to be sourced, which is often expensive. There are several insurance companies who do offer unoccupied house insurance. Note that the water system may have to be drained down, or the heat left on during the coldest part of the winter.
"1 d (7) If let, ensure gas check certificates are obtained for gas fires, boilers and appliances." A record of the relevant certificates will have to be evidenced on your file and kept updated.
Once the client has moved into long term care, the appropriate calls and notifications will have to be made to the statutory utility providers, as well as the council tax section of the Local Authority. Until the property is sold, there will be standing charges to meet, although there may be some allowance for council tax payments. If there is a telephone landline that is no longer needed, then this can be disconnected and final bill settled. Ensure that a redirection of mail is organised with the Post Office, usually for 12 months, to ensure a full annual cycle of any periodicals that the client may subscribe to. As an appointed Deputy or Attorney, the ongoing household bills should continue to be paid through the Deputy/Attorneyship account.
The care of pets
Pets are lifelong friends for many of us, and particularly for an elderly person who may have been living on their own before moving into a care home. They provide constant companionship and protection and in many cases a reason for living for the elderly on their own. Unfortunately, many care homes cannot provide for pets to be taken into the home as well. So what happens to that beloved pet? There are some agencies who will assist, if there is no family member, or close friend, who may be willing to take the animal on.
One such scheme is the Elderly Animal Rehoming Scheme (EARS) which was the brainchild of the Halifax branch of the RSPCA. Under this scheme older animals are paired with appropriate new owners. The older animal is often placed with an elderly person who is still living at home and to be a companion to that person. The EARS scheme aims to alleviate the worries that people have if they take on the animal by giving the following assurances:
- Discounted vet visits and food
- Help with transport
- A vital 24 hour phone number for emergencies
- An ID card which qualifies the pet for a range of benefits.
This is at a present cost of £5 per month and has received the backing of Age UK. The scheme is available in Halifax, Exeter, Cambridge and Southall. There is a similar scheme run by the RSPCA at Putney.
The Cinnamon Trust is a recognised national charity for elderly and terminally ill people and their animals. When the owner cannot manage in their own home any longer, the Cinnamon Trust has a register of pet friendly care homes which list residential/nursing homes happy to accept residents with pets. Finally, when a pet is bereaved they take it in and give it full time care for the rest of its life. The Cinnamon Trust helps 14,000 owners and 16,000 animals a year. (Website link: http://www.cinnamon.org.uk/). Also note that Pets As Therapy is a national charity providing therapeutic animal visits to care homes as well as hospitals and hospices. Volunteers bring their friendly, temperament tested, vaccinated dogs and cats and visit over six million beds a year which is of benefit to a great many care home residents.
Other people to be notified
When the client moves into long term care it is important that friends and family know – an address book can be a helpful source of information. Their GP will need to be notified together with their dentist and optician. Make sure there are no outstanding hospital out-patient appointments to attend, so that these can be dealt with as well. The DWP will also need to be notified as some benefits can be affected by a move into a care home.
When someone moves into a care home, they will want to feel safe and secure in their new environment and it will be important for it to feel like, and, in due course, become their home. Personal items such as ornaments, pictures, books and photographs can help give a sense of the familiar (especially for those who may have dementia). Some homes will allow small items of furniture, if space permits. This would have to be agreed with the care manager. This is also in accordance with the Standards (Section 1 c (4)). There should be a record of best interest decisions made and the family members or people consulted. There should be an audit trail of items removed from the property and their present location.
Many care homes provide a laundry service for clothes, and it is important that the client has properly fitting clothes throughout. Care homes often allow for electrical appliances to be taken in (eg TV/radio) subject to being electronically tested by the home.
If the client has a mobility aid such as a wheelchair, that can usually be taken to the care home. Some Primary Care Trusts supply wheelchairs to residents who need them. In respect of the remaining contents of a client's property, this will have to be properly insured and arrangements made to put items of value into a safe place until a decision has been made regarding their disposal. Sometimes a storage facility may be appropriate. If items have been specifically bequeathed to friends or family by Will, then you may need an order of the Court of Protection to either dispose of them, or give them to the beneficiary while the client is still alive should the client lack the capacity to make those decisions for him/herself. If personal possessions are being taken into the care home make sure you have checked the insurance for them. Most care homes will provide buildings insurance, but will leave contents insurance up to the individual resident.
If the client's property is not going to be sold for a while or if the contents are put into storage then in accordance with the Standards (Section 1 c (3)) you will be required to complete an inventory of the contents and also consider what the contents say about the client – this will include their likes, dislikes, interests and family photos. You will also need to show the OPG that you have an audit trail of items removed from the property and their location. Eventually, if items are auctioned or sold, you will need to evidence clear records of their disposal.
The emotional aspects
For all of us, moving at any stage of our lives is a life changing moment and brings into sharp relief a mixture of emotions. We should not underestimate the emotional impact on the client moving into care, and also the impact on their family members and close friends. The day of the move itself will be a huge step for the client to make and it is important to make sure that they have as much support as possible. If possible, make sure a familiar person goes with them to the home and spends some time with them before they leave. It is also important for the care home staff to have as much information as possible about the client's life. A family tree could help to put family into context. Tell the care home about their significant relationships, personality, attitudes, values, hobbies, religious and cultural preferences, interests and routines. This can all be included in the client's care plan. Writing names on the back of photos can be helpful, especially for those lacking in memory. In the event that the elderly person is not settling down well it may be helpful to raise these concerns with the care home manager, and any social worker involved so some further support can be given .
When the person moves into the care home, you need to ensure that the management and staff of the home know about the client's medical condition, disabilities and other needs. They may have some of this information already (eg if the local authority has set up the placement after a care needs assessment).
If there is any conflict with family members or other visitors that may be causing agitation to the client then you may have to consider making a separate application to the Court of Protection for a Health and Welfare order to cover contact issues (if there is no Deputy or Attorney appointed to deal with Health and Welfare matters), if these cannot be resolved amicably with those concerned.
Once the client is settled into the care home there may be therapies that are required to assist. The Standards (Section 1 g (2)) advise that you must ensure that any therapies or treatments are good value for money and appropriate to the level of funds available. Best interest decisions will need to be recorded and the home should have a care plan which needs to be regularly reviewed. You will also need to arrange for the client to receive a personal allowance relevant to their needs and this will be evidenced to the OPG by appropriate bank statements.
If there is a Health and Welfare Attorney or Deputy in place, or you are acting in that capacity, then you will need to ensure that a health review/assessment is carried out at least annually to ensure that the client's needs have not changed and are still being met. All Professional Deputies, but particularly those acting in a Health and Welfare capacity will need to have a working knowledge of the Care Act 2014, where wellbeing is paramount, and act accordingly.
If the client does not have an up to date Will in place, then it would be advisable to discuss this with the client if they are able to give instructions. If the client lacks testamentary capacity to do so, then you will need to consider making an application to the Court of Protection for a Statutory Will to be put into place. An application to the Court of Protection for a gift, settlement or will must be made by way of a formal application and the detailed evidence required for this is summarised in Practice Direction 9F – Applications Relating to Statutory Wills, Codicils, Settlements and other Dealings with Property. This should always be referred to before making any such application.
Relationships with other professionals
When looking after an elderly person going into care the solicitor must be prepared to develop good relationships with other professionals in the best interests of the client. Sometimes the professionals will already be involved with the client but on other occasions it will be the solicitor who will need to take the initiative, and with the consent and authority of the client whenever possible. For example doctors will need to be involved, often on questions of capacity, both in respect of the client going into care and thereafter. Nurses and professional carers will be the people who are in closest day-to-day contact with the client and their views may be relevant. Social workers may be involved as well, together with accountants, investment advisers and stockbrokers. It is important that there are cohesive links with all the relevant parties. There is much reading around this subject and of particular note is the Law Society guidance published in July 2015 called "Meeting the needs of vulnerable clients" which sets out the Law Society's view of good practice in this area.
If you have any questions about this article, please contact Patricia Wass on T: +44 (0)1752 675034 or E: [email protected]