The short answer; highly unlikely. Unless the defendant can show they have ‘sufficient interest’ in ascertaining the ‘best interests’ of an incapacitated Claimant, which is separate to that of any financial interest.

In the case of RE SK (By His Litigation Friend, The Official Solicitor) [2012] EWHC 1990 (COP) Mr Justice Bodey addressed the issue.

The case concerned a 55 year old man, SK, whom suffered a serious brain injury and physical injuries after he was hit by a bus in 2008. His brain damage was severe; to the extent that he lacked capacity to make almost all best interest decisions for himself. He required extensive rehabilitation and would require care for the rest of his life.

Judgement was entered in the Queen’s Bench Division (QBD) against the defendant bus company for damages to be assessed, subject to a deduction of 40% for contributory negligence. Prior to the completion of the civil proceedings, the local authority responsible for SK brought proceedings in the Court of Protection (COP) after SK had been removed from his placement by a woman with whom he had married (his capacity to enter that contract was also the subject of separate proceedings).

The proceedings in questions were brought to address the issue of where SK should be accommodated and cared for and the level of his rehabilitation regime.

During those proceeding the defendant made an application for joinder to be heard on those issues. That also included an application for the two sets of proceedings to be consolidated, or the issue of residence and rehabilitation to be preserved to the COP proceedingshe defendants primary concern being that the decision of the COP would bind them in the QBD as to quantum, which would put them at a disadvantage and create injustice.

In respect of the application for Joinder, Bodey J (applying the criteria in R73 and R75 COP Rules 2007) held that anyone wishing to be joined as a party must have ‘sufficient interest’. He interpreted this to mean an interest in the COP proceedings and therefore SK’s best interest. It was held this was distinct from any commercial interest.

In addition, it was held that joining the defendant would add nothing to the debate about SK’s best interest and therefore did not satisfy the criteria that their involvement is “…desirable to do so for the purpose of dealing with the application” (R73).

On the issue of crystallising the proceedings, Bodey J made clear that the decision of the COP is separate to the QBD and the two sets of proceedings addressed separate issues. He held:

“the key point in my view is that the underlying issue in the two sets of proceedings, however similar, is not the same. The jurisdiction of the Court of Protection is as to best interests and that of the Queen’s Bench is compensatory. The tests to be applied, although very similar (“best interests” as against “reasonable needs”) are not the same.”

This was supported by reference to the case of Sowden v Lodge [2005] in which it was stated that “…there is a difference between what a Claimant can establish as reasonable in the circumstances and what a judge objectively concludes is in the best interests of the claimant”.

Bodey J made the points that the judge sitting in the QBD would make its own decision on reasonable needs based on the evidence before it in those proceedings. He went on to say that the QBD approach on quantum is a snapshot approach of the circumstances whilst the best interest approach was an ongoing and reviewable one. In particular he held:

“It is entirely foreseeable that there would be problems of increasingly costly and delayed decision-taking about the welfare of the incapacitated individual, if a Queen’s Bench defendant’s pecuniary interests were permitted to be locked into the best interests decision making process.”

As such, the defendants application for joinder was refused.

In comparison at the same time as the defendants application, SK’s brother made a separate application to be joined as a respondent to the proceedings. The brothers application was allowed on the basis he had ‘sufficient interest’ in the proceedings. Ultimately, the brother had an interest to ensure the best interest of SK were met and the best possible outcome was achieved for SK. That was not a financial one, which was essentially the difference between the defendants position and the brothers.

We act as deputy to many incapacitated Claimants whom have ongoing personal injury claims and provide a full litigation support service to many leading and highly ranked personal injury and clinical negligence lawyers. If you have any enquires you can contact our Court of Protection team 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.*

Following my blog on ‘Continuing Healthcare: How can I make sure my relative is receiving the funding they are entitled to?’ which can be found here this follow up blog is intended to provide more information about making retrospective continuing healthcare claims and the appeals process.

Retrospective Claims for NHS Continuing Healthcare

The good news is that you can make retrospective claims for past periods when the patient was eligible for NHS Continuing Healthcare. When making a retrospective claim for Continuing Healthcare you can generally claim for one year retrospective payment, however, if you were never told about Continuing Healthcare – or you were not told how to appeal after the funding decision last time – you may have grounds to claim further back on the basis that the care authorities failed in their duty to provide accurate information. Equally, if you were deliberately misled at the time about care funding, the health and social care employees you dealt with may well have been negligent in their professional duty. Plus, the local authority may have broken the law when it effectively took responsibility for care outside of the Local Authority remit and asked the person in care to pay privately.

An executor can also make a retrospective claim on behalf of a deceased person however only if they can show that they have a legitimate claim. Historic medical evidence and care notes would need to be considered before making an application for any retrospective claim. The NHS can share medical information with an administrator or executor if they can provide proof of their role, as records of deceased are still confidential even after death.

To make a retrospective claim for continuing health care the process involves collecting evidence and information about the patient, contacting the relevant Previously Unassessed Period of Care Team (PUPOC) at the Clinical Commissioning Group and request that the initial checklist questionnaire is completed for the period in question. When acting on behalf of someone else, during this process you will need to provide evidence that you have authority to deal with that persons’ estate or if the person is still living, their affairs. For example, a power of attorney/deputyship order or a grant of probate.

Appeals Process

If you disagree with a decision on a continuing healthcare claim, there is a strict appeals process to follow. When you receive a decision on NHS funding, whether that is for a current claim or retrospective claim, you should be provided with the appeals process in writing. These are the stages that you will need to follow;

If you have been turned down at the ‘checklist’ stage, you first need to write to the Clinical Commissioning Group who carried out the assessment and tell them that you disagree with the decision and set out your reasons why. It is important that you are familiar with the checklist criteria before you do this. You can ask for the checklist to be completed again.

If the patient passes the initial checklist, but has been turned down at the multi-disciplinary meeting where the decision support tool is applied, you can submit an appeal via the local NHS Continuing Care Department in writing to say why you disagree. You should give your reasons against the decision support tool criteria to make your argument relevant and succinct. It is also extremely important that you gather evidence at this stage. If you have no further evidence to what was used at the initial meeting, you will need to set out why the original evidence was not given sufficient consideration at the time. If you produce evidence which should have been available at the initial review, you will have to explain why it wasn’t produced initially. If you do not have the evidence available at the time, you should still submit your appeal and let the NHS know that you will be submitting evidence in due course. There are strict time frames to challenge decisions made by the CCG;

• 6 months from the date of the decision to notify the CCG
• Once you have submitted your appeal in writing;
• CCG should acknowledge this within 5 days and provide you with information on the appeal process
• CCG must deal with your request, complete a review and make a further decision within 3 months

At this stage, you may be invited to a Local Dispute Resolution Meeting to discuss the grounds and evidence for your appeal.

If the chair of the resolution meeting upholds the decision, you can contact NHS England and request that an Independent Review Panel is convened at regional level. This needs to be completed within 6 months of the CCG’s previous decision. To do this, you write to the NHS Continuing Care Review Panel Administrator at your regional office of NHS England, state that you disagree with the decisions made by the local NHS Clinical Commissioning Group and give your reasons why.

The independent review should be conducted within 3 months and you should receive the decision within 6 weeks of the review.

If you do not agree with the independent panel review meeting, you have 12 months from the decision to contact the Parliamentary Health Service Ombudsman to take your case further. Failing that, you may have a case for judicial review/legal action.

During the appeals process, if the patient is deteriorating, then you can request a fast track application and for another decision support tool assessment to be completed. This new claim will run alongside your appeal.

If at any stage of the appeals process is successful, funding will be backdated to the original date of assessment, or the date of withdrawal if you successful apply a decision to cease NHS Continuing Care funding.

If you believe your relative may be entitled to Continuing Healthcare Funding, or you would like to know if you have grounds to challenge a decision made by your Local NHS Clinical Commissioning Group, please contact our deputyship team.

The short answer is ‘no’. If the local authority has agreed to your child receiving a package of care, based on their special needs, and they want to change this, the local authority should provide you with a copy of their re- assessment, or reasons for the proposed changes. The local authority should also give you an opportunity to comment on the changes before they ask the local authority Care Package Panel to authorise the changes.

In a recent case, Lewisham Council was criticised for reducing the care and support package of two brothers with autism without telling their mother the reason for the decision. This had a significant impact upon the family since it resulted in the boys’ respite care being significantly reduced.

The mother lodged a formal complaint and the local authority delayed in dealing with the complaint. The local government ombudsman upheld the mother’s complaint and the local authority was asked to pay the mother a lump sum in recognition of the distress caused to her.

If the local authority proposes to make any changes to a package of support for your child, it is very important that you have a clear understanding of why this has been suggested, so that can review whether it is justified in the circumstances. The local authority’s decision-making process must be transparent. Any complaints made to the local authority should be dealt with promptly – usually within 25 working days (or up to 65 days in exceptional circumstances).

If your child has special needs and you experience any problems in dealing with the local authority regarding your child’s package of care our experienced Court of Protection team can assist you.

* 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.*

NHS Continuing Care funding is subject to review, initially after a period of 3 months then every year. If the assessor concludes that the person no longer has a primary health need, the funding will be withdrawn. You can’t be asked to repay any care fees which were paid by the NHS funding (unless there is evidence of fraud in obtaining the funding initially) so you don’t have to worry about a large backdated care fee invoice. NHS Continuing Care funding is separate to means tested local authority funding and while they are both paid from the government, the criteria for the funding is different. So, if your NHS Continuing Care funding is withdrawn, you may still be eligible for funding from the local authority.

The next steps will depend on the circumstances of each individual. If the person has funds above £23,250 they will be expected to then meet their care fees going forwards. It is very common that care homes charged more to privately funded residents than what they would charge the local authority if they were paying. The care home should provide a new contract to be signed which sets out the care fees payable.

If the person has capital of less than £23,250, the local authority has a duty to make contribution towards the care fees. Upon the NHS Continuing Care funding being withdrawn, you should immediately request a financial assessment from the local authority. This normally means that you need to complete a detailed form setting out the full capital, income and expenditure of the person being cared for. Each local authority does have different procedures so you will need to check with the relevant local authority for their assessment process. The local authority may also carry out a care needs assessment to ensure the appropriate level of care can be provided in that setting.

Property is included in capital, so if the person owns a property the present market value of it will be deemed to be included in their capital. The value is less any mortgage or loan on the property and less 10% of the value where there would be expenses to sell it.

Property can be disregarded if you only need short term or respite care. It will also be disregarded if it is still occupied by your partner, or former partner (unless you are estranged). Estranged partners can count as exempt occupiers if they are also a single parent of a dependant of the person. Occupants who are relatives over the age of 60, children under 18, or relatives who are disabled also make the property exempt from consideration in the financial assessment.

If the property is deemed to be included in capital, but you don’t have the funds to meet the ongoing care fee costs, you can ask the local authority to allow you to make a deferred payment. If you have less than £23,250 in capital, other than the value held in property, you will be eligible and the local authority must offer you the chance to make a deferred payment. If agreed, the local authority would put a legal charge on the property, which is similar to a mortgage. The terms of deferred payments can be negotiated to include a sale of the property after a set time (e.g. if there are delays in selling the property), or to defer the payments until the person dies, at which point the funds will be deducted from their estate and repaid to the local authority.

Some people may consider giving away their property to relatives once their NHS Continuing Care funding is withdrawn so it does not count in their capital and therefore the local authority would have to pay the care fees. However, this may count as deliberate deprivation of assets and the local authority could have the right to still charge you the same level of fees as if you still owned the property.

If you need any advice regarding obtaining local authority funding for care fees, please contact the Court of Protection team.

* 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.*

Managing the property and affairs of the protected party is an extremely important role for the deputy.

The deputy must always be conscious that they are looking after “other people’s money” and should spend those funds wisely.

Many times, I have heard family members say, “the deputy is very good because they provide funds when we request it”.  On other occasions family members will say “this deputy never provides funds when we request, although the money does not belong to the deputy”.

It is a dilemma and one that needs to be looked at every time funds are being requested.  Is the request for money reasonable? Will it benefit the protected party, or is it for the benefit of the family?

Underpinning this is budget planning of the funds the deputy holds.  It is important that budgets are reviewed annually. This will ensure that the funds are not being spent too fast or indeed the opposite.

In the absence of budget planning, this could embarrass the deputy in the long run – vast overspending of the money could lead to long term problems.  This is particularly evident in personal injury cases where a compensation award would have been made.  The award is usually to last for life.

It is therefore crucial for the deputy to budget and to review on a regular basis throughout the year.

Sensible dialogue with the family throughout the year is important.  If on occasions the deputy declines to release funds and explains why, the family would have a better understanding behind this and would hopefully appreciate why in the long run we are protecting the assets of the protected party.

Budget planning is extremely important and more so for lay deputies who may not have a full grasp of this enormous role.  Seeking the views of an Independent Financial Adviser is one that should also be considered.

Should you require advice on this specific issue, please contact our Court of Protection team.

* 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 P is sole-owner?

The Deputy order may contain a clause explicitly prohibiting the Deputy from selling, charging or otherwise disposing of property in which P has a beneficial interest without obtaining further authority from the Court.

If the Deputy order does not contain such a restriction, then the Deputy can proceed with the sale however it is advisable to still make an application if the sale is likely to be contentious, there is a potential conflict of interest or the property has been gifted under a Will.

When P is a co-owner?

Someone acting as an attorney under a registered power of attorney automatically acquires trustee functions in respect of trusts of land under the Trustee Delegation Act 1999. This means that in principle, an attorney is able to sell property belonging to the protected party without making an application to the Court, providing the other conditions are met.

Conversely, a Deputy is specifically restricted from carrying out trustee functions as part of their Deputyship powers under section 20(3)(c) of the Mental Capacity Act 2005. As such, an application must be made to the Court of Protection to appoint a trustee. The trustee does not have to be the Deputy however they can be – if the Deputy is appointed as trustee he should remember that these are separate roles and he will therefore have to act differently depending on which role he is acting in.

The process where there is an existing and capable co-owner

Where there is another existing trustee that is able to act, the Court application must be made under Section 36(9) of the Trustee Act 1925. A number of forms will be required including a COP12 which is a special undertaking by trustees and a COP1D which provides additional information relevant to appointing a new trustee.

The process where there is not an existing and capable co-owner

Where P is the only continuing trustee, normally resulting from the co-owner having passed away or a joint tenancy having been severed, an application to the Court needs to be made under section 54 of the Trustee Act 1925 and a minimum of 2 trustees must be appointed. The same forms are submitted as for where there is a continuing trustee however, additional documentation must be filed such as a copy of the notice of severance or a copy of the Will and grant of representation.

If you need advice in making an application to sell P’s property, please do not hesitate to contact us and we will be more than happy to assist you.

* 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.*

On the 3 March 2017, the Office of the Public Guardian (the OPG) published a useful practice notice for fee paid professionals who agree to be appointed as a lasting power of attorney (LPA) in their professional or business capacity. This excludes family members or friends, however includes solicitors, accountants, financial advisers, consultants and people working in charities.

The guidance applies to both types of LPA – Finance and Property and Health and Welfare. Its aim is to ensure that you are adequately prepared for the role and that appropriate discussions are had with the donor before the loss of capacity.

Below I set out a summary of three relevant sections under the guidance for prospective attorneys:

1. Points to consider when preparing to become an attorney:

a) The difference between an individual LPA or trust corporation

The donor must be informed that if an individual is chosen, then the person is personally responsible and that the appointment continues even if your leave your post, profession or retire, unless or until you disclaim your appointment.

b) Conflict of interest

If you provide the donor with general advice on creating an LPA, and put yourself forward for the position, the donor must reach their decision free of any influence in order to avoid any conflict of interest.

c) Skills and experience

The donor must be fully informed of your competence for the role including any relevant skills, experience and knowledge of mental capacity you have.

d) Appointments made jointly or jointly and severally

To be appointed jointly and severally, in particular with a lay attorney, means you could be held responsible for any misappropriation by them. Further it is necessary to agree in advance on the working relationship to ensure effective management of the donor’s affairs.

e) Certificate providers

This has to be an impartial third party who confirms that the donor fully understands what they are doing and has not been coerced. The certificate provider cannot be:

• Any business party, employee or family member of the attorney.
• Any director or employee of the trust corporation, or connected business

 

2. Duties and Responsibility

In accordance with paragraph 7.59 of the Mental Capacity Act Code of Practice, the Office of the Public Guardian demands the following from a fee paid professional attorney:

• a higher degree of care or skill than those acting in an unpaid or lay capacity, in particular in relation to those particular skills or qualifications they pertain to have;
• that they display professional competence and follow their profession’s rules and standards as set out in paragraph 7.59 of the Mental Capacity Act Code of Practice and;
• only take on as much work as you can handle (i.e. ensuring you can cope in the event that every donor needed your help at the same time)

It is important to remember that any failure to act appropriately can result in severe consequences, both personally for the attorney and their organisation, including professional negligence claims, regulatory investigation, financial loss and criminal liability.

3. Professional Fees:

You cannot charge for your services if the LPA document is silent on fees.

You should discuss and agree with the donor your fees, how these are likely to increase over time and how long you expect to be charging fees once the LPA becomes active.

Most importantly, you should discuss with the donor what you will do should your professional fees become unaffordable. You may need to consider disclaiming your appointment or whether you would be prepared to act free of charge.

All prospective attorneys should review the full guidance which is available 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.*