The Court of Protection has powers to grant health and welfare deputyships in line with The Mental Capacity Act 2005 (MCA).

MCA 2005 lists the following five principles which are imperative when any decision is made on behalf of an individual whom has been deemed to lack capacity to make their own decision. The principles apply equally to property and affairs decisions as they do to health and welfare decisions. The principles are as follows:

1. A person must be assumed to have capacity unless it is established that he lacks capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests;
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action;

Appointing a deputy for health and welfare is uncommon and usually an option of last resort.

The Court may appoint a deputy where a decision is in dispute, the decision is complex and difficult, or ongoing decisions need to be made for a vulnerable person. For example, if consecutive medical treatments are required in a short period of time.

However, it is common for the Court to make an order in relation to a specific issue as oppose to delegating decision-making powers generally to a health and welfare deputy. This is because the Court prefers to retain powers in this respect given the sensitive and often complex nature of the decisions to be made.

Common Orders granted in relation to specific health and welfare issues are as follows: :

1. Where the protected party should live;
2. Who the protected party should live with;
3. The protected party’s day to day care, including diet and dress;
4. Consenting to medical and dental treatment;
5. The protected party’s care arrangements;
6. Leisure or social activities the protected party should takes part in;
7. Complaints about the protected party’s care or treatment.

Each order granted by the Court will list specific issues to be addressed and how. The Court might appoint a deputy formally but limit their powers to the specific issue. If that individual is faced with decisions outside of their power, they will need to apply to the Court for a further order that might extend their authority.

Things change, life happens! Your circumstances at the time of agreeing to take on the role of a property and affairs Attorney under a Lasting Power of Attorney (LPA) can drastically change over time. The Donor’s circumstances can also change.

The role of an attorney is a significant responsibility as (dependent on any terms and restrictions within the LPA) you are responsible for making important decisions on someone else’s behalf once the LPA has been activated.

It is not uncommon for the Donor’s financial circumstances to become more complex and burdensome over time. Another possibility is that you as the appointed attorney may no longer feel able to take on the role i.e. due to ill health or lack of experience.

An attorney can at any time disclaim their appointment. However once completed, this process cannot be reversed. Therefore, good practice would be to ensure that your retirement does not impact negatively on the Donor’s position.

Your starting point in this scenario should be to discuss your concerns with the Office of Public Guardian (OPG) or a qualified solicitor. They can advise you on what steps you need to take to ensure that the Donor position is protected following your retirement.  It might be the case that there is a replacement attorney appointed under the LPA who can take over from you. However, if there are no remaining or replacement attorneys, your disclaimer is likely to invalidate the LPA. Therefore care should be taken to ensure the Donors position is  protected.

An attorney can disclaim their appointment by completing an OPG form LPA005.  This can be downloaded here.

As part of the disclaimer process, you will need to send the original form to the Donor to notify them. If there are other attorney’s, you will also need to send a copy of the form to them. If you are the only acting attorney you will need to send a copy to any replacement attorney.

Once you have done so, you will need to submit a copy of the form plus any copies of the LPA that you may hold in your possession by post to the Office of the Public Guardian.

Please note that a different process will need to be followed if acting under an Enduring Power of Attorney.

If you are an attorney and require legal advice, please our Court of Protection team form advice on 020 7940 4000.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Court of Protection has seen an exceptional increase in claims being issued. In 2017, 38,945 orders were made by the Court under the Mental Capacity Act 2005 (‘the Act’).

It can take many months for an application to process through the Court before a hearing is listed. It is against this background that the South West Region working group has been tasked to set up a Court of Protection mediation pilot scheme. The purpose of the scheme is to encourage parties to reach an agreement at an early stage during the course of legal proceedings.

This will in turn lead to fewer hearings and lower costs, and may also result in improving the relationships between parties when compared to litigation, thus creating a better way of resolving disputes involving the most vulnerable in society.

Currently, under the Act and the Court of Protection Rules 2017, the Court has a duty to encourage parties to use ADR. In addition, when considering costs, it is able to look at the conduct of parties before proceedings (rule 19.5(2)(a)) which may also include the unreasonableness of a failure to engage in mediation. The Mental Capacity Act 2005 Code of Practice also encourages disagreements to be resolved by formal or informal procedures.

The pilot scheme will add to these provisions and will apply both to Health and Welfare disputes, including serious medical treatment and Property and Affairs disputes. This includes contested Deputyship applications.

It is intended that the pilot scheme will be implemented by way of a practice direction. As such it will regulate only the conduct of issued claims and in this way, proceedings would effectively be stayed in order for an agreement to be attempted. However, mediation can be used at any stage during a dispute and there is nothing to prevent the practice direction being followed prior to a claim being formally issued in the Court.

In addition to the pilot scheme, the Office of the Public Guardian announced in May 2018 that they are looking to launch a a further mediation pilot to deal with welfare disputes prior to issue. It is expected that the two pilot schemes will run alongside each other.

When the pilot schemes are to be introduced is yet to be confirmed, however this is an exciting and welcomed development within the Court of Protection which fully accords with the objective of dealing with cases justly and proportionately.

If you would like to read further about the mediation scheme you can download a copy of the proposals here.

Anthony Gold’s Court of Protection Department have significant experience in Deputyship applications, including contested applications and mediation. If you would like further advice, please do not hesitate to contact us.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Earlier this year the Court of Protection set down guidelines in relation to the appointment of Trusts Corporations as Deputies. (re: The Appointment of Trust Corporations as Deputies [2018] EWCOP3.)

Since the introduction of the Mental Capacity Act (MCA) 2005, it has been the practice of many larger more corporate firms of solicitors to set up a limited company as a trust corporation. That limited company can, as a legal body, be appointed as both trustees and deputies under s.19 of the MCA 2005.  A trust corporation cannot however be appointed to act under a welfare order.  From an operational point of view, there are some advantages to utilising a trust corporation to act as property and affairs Deputy.  Her Honourable Judge Hilder identified three main advantages to this structure being: continuity, availability and professionalism.

Corporations are generally more flexible in terms of operations when considered against the appointment of a sole Deputy. A corporation can have an unlimited number of directors and other officers, so as day-to-day management can be covered efficiently. For example, multiple directors can cover absences caused by leave, sudden sickness or even death. Financial or other hardship might be caused if a specific transaction or payment is delayed because a named individual is required to act as sole decision-maker and is unavailable.  Therefore, the added operational flexibility that a corporation provides might be an important consideration for the client, to cover such eventualities.

Perhaps the most significant issue is succession. Deputyships and trusteeships are personal appointments, albeit that a company can be a legal person in this respect. A Deputy is appointed by Court order and so it is necessary to go back to the Court for permission if a transfer over to a new proposed Deputy is to be affected and approved That can be time consuming, disruptive and expensive for the client.  The directors in a corporation can be changed simply, without a corresponding effect on the assets managed with that particular trust (e.g. there will be no need for re-registration of assets or holdings or a change in ownership details).

The recent consideration given by the Court on the manner in which trust corporations are being utilised within the profession, looks at the pros and cons of a trust corporation being appointed Disruption around succession and the costs of transfer were issues that the Court identified as advantages of trust corporations.  However, these benefits were identified as being focused on procedural or financial factors which are not the only relevant consideration when contemplating the appointment of a property and affairs Deputy. Hilder indicated that “deputyship generally also requires an appropriate person-to person interaction” which is extremely important in these often sensitive and complex cases.  At our firm, we very much value the personal interaction we have with our clients, frequently, through sustained periods of time.

Concerns as to the appointment of a corporation included a Deputy’s avoidance of personal liability, through the limited liability of companies. Further concerns cited were the difficulty to supervise a company, either by the Office of the Public Guardian or the Court, having instead to rely on the corporation self-reporting on its efficacy and ability to act, with a declaration of truth.  It was also noted that with a personal appointment, an individual is likely to be appointed for a small number of clients whereas a corporation will potentially act for a greater volume of cases aggregating a larger risk to the client base should there be any issues with subsequent non-compliance.

The Court considered these points and set out the requirements that should be met, and the undertakings given, if a. corporation is to be appointed as property and affairs Deputy. Hilder stressed that trust corporations can only be used if the trust corporation is authorised by the SRA, or all the directors of the trust corporation are solicitors and the trust corporation is linked to an associated legal practice covered by professional indemnity insurance. The trust corporation itself is not to be allowed to employ staff save for a company secretary. The firm of solicitors with whom the corporation is linked should engage the lawyers working on the case. The Court of Protection then set out further requirements, namely that the firm’s professional indemnity insurance has to meet the SRA’s minimum terms and conditions and that a copy of that policy would be lodged with the Public Guardian on appointment.  The corporation will be under a duty to inform the Public Guardian if there is any reduction or change in the terms or level of the insurance cover. Hilder has called for these requirements to be incorporated into a standard COP4 Declaration that is required to be filed at the Court of Protection when making any Deputyship application.

In effect, the Court of Protection has sanctioned the use of trust corporations, if properly regulated and insured. The Court is of course concerned with the best interests of the protected party. As such they want to keep costs down, but most importantly ensure that the protected party gets good service and consistency.

If a professional Deputy is acting outside of a trust corporation, then succession is a commercial issue for that practice. Professional Deputies are paid for their services. The Deputy might be an employee or partner in a firm of solicitors, who might move jobs. The firm will wish to retain that client. Most solicitors are required in their contract of employment to pass their clients to the firm on leaving. However, as the appointment of a Deputy is personal, in practice a transfer is difficult, if the client or their family object. The prospect of an unseemly fight over a client is not attractive to most firms, especially if it costs the client money. Hence a trust corporation suits the commercial ends of the firm of solicitors.

The question of whether it is right to recommend a trust corporation to any particular client is nuanced. A Deputyship is a personal appointment and for good reason. The service a Deputy gives is personal and based on a relationship of trust. Should P or their family “trust” a limited company x with power over many aspects of their life?  From our experience, clients and their families prefer a personal named appointment as opposed to a generic corporation with varying directors which clients perceive as being more difficult to establish long-lasting working relationships with.

Many of our clients do want a personal connection with an individual responsible for their finances and to some extent welfare. Family members also prefer to know that the buck stops somewhere. Some feel, rightly or wrongly, that a director of a company, who might change, does not feel as engaged as the person they can see in front of them.  Whilst they might be persuaded by their trusted lawyers to appoint a trust corporation, it is important that they are given an informed choice.

One solution to the practical problems, which delivers much of the costs savings, is to appoint joint professional Deputies. We offer clients the option, aside from seeking a professional Deputy outside Anthony Gold, of two partners in the firm being appointed.  This is a practical solution that works well and addresses all of the concerns debated in this case about covering absences, creating additional availability and delivering a cost-effective, professional service.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The inability to afford care fees is a big dilemma which care home residents and their family members face.  If the money that has been used to pay for long-term care is running out, there are several options that need to be considered including whether you can turn to anyone for financial support to fund the cost of on-going care.  At present a person should be entitled to financial support from their local authority for care, once their capital falls below £23,250.

Care Needs Assessment

You should arrange a care needs assessment with the relevant local authority.  The assessment will consider your current care needs and what care will be required in the future.

Financial Assessment

If the care needs assessment indicates that you are entitled to support, you will need to arrange for a financial assessment to be undertaken.  The relevant local authority will require a detailed form to be completed to consider your income, savings, assets and eligibility for funding.  Depending on the outcome of the financial assessment, you might still need to pay a contribution towards your care.

Can you remain in the care home?

This is a common question that is raised by the family.  As you may no longer have sufficient funds to pay for the care, this does not automatically mean you will have to move into a different care home.  It is important to consider the contract that has been signed with the care home or provider which should detail the procedure adopted by the particular care home in detail.  Some care providers will allow you to stay at the care home while you are applying for funding.  In certain circumstances the care home may also accept a lower weekly cost of care rate from the local authority so that you will not have to move and can continue to have the benefit of continuity of care.

Should you require assistance on this specific issue please contact the Court of Protection team at Anthony Gold.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The law around lawfully depriving an individual of their liberty in order to keep them safe and/or to meet their care needs, is complex and is often an issue to be addressed by those involved in P’s welfare and care decisions i.e. medical professionals and social services.

However, a financial deputy, privately funding a care package in P’s home (or any other setting for that matter) will also need to take certain steps to ensure that any deprivation of liberty which arises as a result of the package, or could potentially arise in the future, is notified to the local authority and authorised by the COP.

In summary, a deprivation can arise if, as a result of the care package, P is under continuous supervision and control, not free to leave and lacks capacity to consent to these arrangements.

In such circumstances, a local authority (i.e. social services) has a duty to ensure that any arrangement resulting in a deprivation is conducted in accordance with the relevant safeguards set down in the Mental Capacity Act 2005 (MCA). Also known as DoLs. Those safeguards seek to ensure that people are cared for in a way that does not inappropriately restrict their freedom. This is to ensure that no breach of Article 5 of the European Convention on Human Rights (ECHR) arises. Article 5 provides that no one should be deprived of their liberty in an arbitrary fashion.

This is so, even where the care is being funded privately and not by the state. Why you might ask? Because, in summary, the state has an indirect duty to protect a person against interferences with his or her liberty by a private person.

During the course of a financial deputyship, it may be necessary to consider moving P out of a hospital, care home or supportive living arrangement into their own property with adequate care. However, the care package to be implemented may give rise to a potential deprivation.  For example, it might be necessary to install locks or alarms on windows and doors to prevent P leaving the property unsupervised, and P may lack capacity to consent to those arrangements.

A care package funded privately by a deputy is often implemented on the recommendations of an entirely privately funded clinical team. As such, social services and therefore the local authority will have very little to no input in the care arrangements.

The issue was addressed in the case of the Staffordshire County Council v SRK.

In summary, SRK suffered multiple injuries including a brain injury following a road traffic accident, as a result of which he required 24 hour care and assistance 7 days a week. SRK’s deputy received significant damages which allowed them to purchase a property and fund a private care package. The care regime created deprivation. The local authority had no knowledge of this case until it received a letter from the deputy informing it that SRK may be deprived of his liberty. The issue arose as to whether the state was responsible, directly or indirectly, where P’s package was privately funded. It was held that it was. The case, was appealed unsuccessfully, by the Secretary of State who argued that the detention was not ‘attributable to the state’ because SRK was cared for in his private home without any involvement by any public body.

As such, property and affairs deputies should be aware that a privately funded care arrangement may give rise to deprivation and, in the first instance, should write to the local authority for a DoLs assessment. Unless the situation on the ground can be altered in a way that means that P is not being deprived of his liberty, then the local authority will need to make an application to the COP to seek authority for the deprivation.

If the Local Authority’s assessment concludes that  P is deprived of his liberties or if there is any uncertainty over the matter, an application should be made to the Court and P should not be moved until the Court has authorised the proposed care arrangements. If the care package is already in place, then an application should be made urgently.

Where there is agreement that the measures are the least restrictive, then a streamline paper procedure for a welfare order should be appropriate. Once authorised, the deputy should ensure that the DoLs is kept under review by the relevant decision maker.

Specifically, where P has a personal injury claim, the Court awarding the damages and the COP when appointing a deputy or considering a report on settlement, should consider whether the care package gives rise to a deprivation. If so, the Court should provide appropriate directions. The costs of a possible application and/or the deputy’s work associated with seeking an authorisation should be factored into any compensation award.

In practice, a deputy might find that the local authority does not action a referral or they may claim that it is not their responsibility, or even that P should cover the cost of the application. This is not correct and every effort should be made to encourage the local authority to proceed with the application. If they still refuse, the deputy may need to consider making an application to the COP for directions.

If the local authority fails to take steps, it may face a claim for damages. Where less restrictive measures could have been used, damages may be substantial.

The Staffordshire case, and other recent decisions, have increased the categories of people falling into the safeguards and have therefore placed  a huge burden upon the local authorities and Court resources at a time when they are already significantly stretched.

The Safeguards have faced criticism since they were introduced. The Law Commission reported on the issues in March 2017. On the 14 March 2018, the Government issued a positive response, agreeing that the safeguards needed to be replaced. However, there is no timescale for the reforms and given that Parliament’s priorities are being diverted elsewhere, it is unclear when this is likely to happen. The Law Commissions report can be found here and the Governments response here.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The story began on 18 March 2009, when 35-year-old Claudia Lawrence was last seen returning home from her shift as a chef at the University of York.  An alarm was raised the following morning, when Claudia failed to turn up at work.  An investigation into her disappearance and suspected murder was launched but despite six arrests, no charges were brought against anyone.

Claudia’s disappearance plunged her family into a state of despair.  Not only have they had to deal with the devastation of not knowing what happened to Claudia, but they have also had the additional stress of struggling to deal with and safeguard Claudia’s financial affairs during the period of her disappearance.  Under current legislation, the Presumption of Death Act 2013, families of missing persons are required to wait 7 years before they can apply for a ‘Declaration of Presumed Dead’, which would allow them to apply for a certificate to deal with their loved one’s financial affairs.  Claudia’s family strongly criticised the legislation in force as Claudia’s property and affairs were effectively ownerless and the 7-year wait brought about additional anxiety to the family as they struggled to manage Claudia’s financial matters.  The legislation would have also precluded the family from applying for a Grant of Probate, should she be deemed presumed dead, which can usually only be obtained following the presentation of a death certificate.

Approximately 250,000 people go missing every year in the UK and the Government recognised that Claudia’s family were not an isolated case. This, combined with the Lawrence family’s campaign for new legislation, gave rise to the Guardianship (Missing Persons) Act 2017 (“the Act”), which on 27 April 2017 received Royal Assent.

This new legislation, which is believed to come into force this year, enables the Court to appoint a Guardian to act for a missing person after they have been confirmed missing for more than 90 days.  Section 1 of the Act defines “missing persons” widely, as people who are absent from their usual place of residence and usual day-to-day activities and their whereabouts are not known at all or are not known with sufficient precision to enable the person to be contacted for the purposes of decisions relating to his or her property and financial affairs.

The appointment will last for up to four years but can be extended upon expiry.  Pursuant to section 6(4) of the Act, the rights and powers that a Guardian may be appointed to exercise include selling, letting or mortgaging the missing person’s property, making investments, executing deeds, recovering money owed to the missing person, discharging debs, bringing or conducting legal proceedings and making gifts.  Former Justice Minister, Lord Faulks has been quoted as saying that “when someone suddenly disappears, their affairs can be thrown into disarray, adding to the distress and emotional heartbreak experienced by family members…. these measures will give legal powers to families, allowing them to take charge of their missing family member’s property and financial affairs”.  The new legislation is a welcome development helping to fill the current void that exists with property and affairs management for missing persons.

As with the powers provided to Property and Affairs Deputies acting on behalf of people lacking mental capacity, the Missing Person’s Guardian will be entitled to be reimbursed from the missing person’s assets for reasonable expenses incurred in connection with the exercise of their Guardianship functions. A guardian will also have to act in what he or she reasonably believes to be the missing person’s best interests.

It is not known at the present time which Court will have jurisdiction to hear applications for Missing Persons Guardianship once the Act comes into force, but the rumour has it that the Court of Protection may well be tasked with this.

I guess we shall wait and see.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Office of the Public Guardian (“the OPG”) provides protection to individuals in England and Wales who may not have the mental capacity to make certain decisions for themselves.

One of the OPG’s responsibilities is to maintain an accurate register of Deputies appointed by the Court of Protection, either in a Property and Affairs or Welfare capacity.  That is partly to ensure that the OPG can meet its supervisory function and reporting requirements to the Court of Protection and to ensure that their data is accurate.  A list of Protected Persons and Attorney’s acting under a registered Power of Attorney are also retained by the OPG, as is a record of any dismissals, revocations, deaths or changes under any of those powers.

To help ensure that the OPG can actively manage their internal records, there is a duty to notify the OPG on the death of the following people: –

1. Donor of a registered Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA);
2. Attorney acting under a registered EPA or LPA;
3. Replacement Attorney under an EPA or LPA;
4. Deputy appointed by the Court of Protection;
5. Death of the Protection Party subject to a Deputyship order.

You must notify the OPG as soon as possible on the death of a Deputy or a Protected Party.  This should be done formally, in writing, quoting the case reference number, full name, date of birth and the last known address of the deceased person.  In addition, one must supply the OPG with formal confirmation of the death which can be any document from the list below:

• A completed solicitor’s death verification form;
• A copy of a letter from someone able to confirm the date of death (non-exhaustive list) such as:
  • A solicitor, barrister or advocate authorised to practice in the country where the declaration is made;
  • A legal executive who is a member of the Institute of Legal Executives;
  • A Will writer who is a member of either: the Society of Will writers or the European Association of Will writers;
  • A doctor or surgeon registered in the country where the declaration is made;
  • A notary public or any person allowed to administer oaths in the country where the declaration is made;
  • A magistrate;
  • A chartered accountant;
  • A funeral director;
  • An officer of a bank;
  • An officer of the DWP responsible for administering benefits;
  • A social worker registered to practice in the country where the declaration is made;
  • A local government officer responsible for administering benefits or council tax;
  • A care home manager or owner;
  • A consular or embassy official, if the person died abroad;
  • A Local Authority Holder of the Office of Deputyship Officer.

• A certified certificate issued by the Registrar General, a Superintendent Registrar or a Registrar of Births and Deaths;
• The equivalent of a (copy) certificate issued abroad by the appropriate registration authority if the person died abroad.

On the death of a Deputy, the OPG’s supervisory jurisdiction will end, unless the Deputy was jointly and severally appointed with another individual, where the OPG remains involved and its functions will continue and extend until such time as the Court appoints a replacement Deputy.

The OPG will usually request that a final financial report be submitted by the Deputy’s personal representatives to account for expenditure, transactions and decision making up until the time of death.

On the death of a Protected Party, the Deputyship comes to an end, however the OPG will still request a final account up until the date of death, before estate administration matters are considered.

For further information about of the processes followed by the OPG when a death is reported, there is a useful Public Guardian Practice Note which can be accessed here.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

When our clients move from their own homes into residential care homes or nursing homes, the question of funding this care comes into consideration. Some of our clients have enough capital, in savings and assets such as property, to fund the cost of their care institutions. However, should our clients not be able to pay their care fees, the local authorities may assist.

The Charging for Residential Accommodation Guide s (6) sets out the rules regarding social services contribution. As such, a person whose capital is over £23,250 will not be eligible for financial assistance, and they will have to fund their own care. If the person’s capital falls between £14,250 and £23,250 then they will have to contribute to the cost of their care on a tariff based system. And finally, should the person’s capital fall below the £14,250 threshold, the local authority will fund the care in its entirety, subject to any contribution from income.

Normally, capital would include property. Unsurprisingly, considering the average value of a house in the United Kingdom is now worth around £225,956, many find themselves paying for care from the sale proceeds of their home. However, there are instances in which a person’s property can be disregarded from the financial assessment process.

Property disregard happens for several reasons. The authorities recognise that many properties are held by the people going into care are not inhabited by them alone and a sale or renting of such property could cause distress to family members. The situations in which the value of properties held in a person’s name are disregarded are detailed in the CRAG and the subsequent Care & Support Statutory Guidance.

The main exception is set out in CRAG s7. This section reads that if the property has been occupied, in part or in whole, by relatives – a spouse, or a lone parent who is an estranged or a divorced partner, a relative over 60, or a child under 18, or a disabled relative (who could be under 60) – before the person’s move to a care home, the property should be disregarded.

Another exception is that the value of the home must be disregarded for the first 12 weeks of any admission to permanent care (CRAG s 7 (6)). Similarly, if the person’s stay in a care home is temporary, which means up to a year, and they intend to return to the property, the home will also be disregarded.

Controversy has arisen regarding people who lived with their parents before their move into care, but have subsequently left home for work or other reasons and have rented out, but intended to return to the home permanently. The question is whether the relative ‘occupies’ the property or is only emotionally attached to it. Should the property be disregarded in this instance?

The courts have decided that property may be regarded in this instance too. While each case depends on the circumstances, a case in 2014 found that a relative who had lived at the property before the protected person was moved into care, and who showed a clear intention to returning by keeping close ties to “home” (such as being registered to vote there, or registered with a local doctor), will be regarded as occupying the property, and hence this property will be disregarded from a financial assessment.

However, there are cases in which a relative moves in close to, or after the time when the protected person was moved into care in an attempt to prevent the property from being sold, after inclusion in a local authority financial assessment. In this event, the property will still be taken into consideration.

The Charging for Residential Accommodation Guidance and the Care & Support Statutory Guidance provides helpful information regarding social services financial assessments. However, should you be unsure about such assessments and whether your property will be taken into consideration when requesting a financial assessment, our solicitors Court of Protection solicitors are available for advice.