Trusts are commonly used to protect the interests of vulnerable or disabled beneficiaries. Their formation will often arise through the Will of a testator whom wishes to pass assets to a disabled or vulnerable friend or relative. However, a trust may also be set up by way of deed during one’s lifetime.

Discretionary and disabled person’s trusts (DPT) are the most commonly used trusts to protect the interest of vulnerable and disabled beneficiaries.

A discretionary trust ensures that the assets and any income arising within the trust will be applied and managed entirely at the trustee’s discretion. In this way, the beneficiary has no entitlement to the capital or income and it is entirely up to the trustees’ discretion as to whether the beneficiary should receive anything and how the fund should be applied.

A DPT can be a discretionary trust (and commonly is set up in such a way) but can also be an interest in possession trust i.e. where the disabled person has an entitlement to income. Where the relevant conditions are met, namely, the beneficiary meets the definition of a ‘disabled person’ and the trust is a ‘qualifying trust’, an election can be made so that it receives more favourable tax treatment in respect of income, capital and inheritance tax.

There are many benefits to using the above trusts for vulnerable or disabled beneficiary. For example:

• They are useful where a beneficiary is unable to, or will have difficulty managing funds and assets themselves;
• The beneficiary has no direct access or power to access the trust fund themselves. As such, a level of protection is provided to a vulnerable or disabled beneficiary whom might be more at risk of financial abuse or misappropriation;
• It provides a means of helping to manage important financial affairs and providing financial support, which is particularly important where one’s mental capacity or ability to manage a large or complex assets is questionable;
• Funds held on discretionary trust should be disregarded by social services funding care or for certain means tested benefits;
• The money held in the trust can be used without impacting on benefits to buy extra things which might not be covered by benefits or social services funding; such as holiday, clothing, gifts, equipment, extra activities and so on;
• Funds can also be used to top up care and support without effecting care funding or benefits. Social services will often only meet a basic level of care and may therefore conclude that a beneficiary needs a much lower level of support in comparison to what they have received from the deceased if they were a close relative;
• A trust can be the legal owner of a property. As such, the trust fund can be used to buy a house or a flat where the beneficiary can reside. As the property is owned by the trust, and not by the beneficiary, again, it should be disregarded for benefit purposes and local authority care funding;
• The trustees will also be responsible for managing and maintaining property it owns which the beneficiary may find difficult to do themselves;
• Some trusts for disabled people or vulnerable beneficiary’s get special tax treatment.

It can be seen that there are many advantages to using a trust for a vulnerable or disabled beneficiary. However, where the value of the trust is substantial and the assets within the same are complex it can become burdensome and difficult to manage, particularly for a lay trustee.

Being a trustee is an important responsibility and in particular, managing a trust for a disabled or vulnerable adult comes with an added layer of complexity. In addition to the general management tasks, consideration will also need to be given to how the fund can be applied to meet the longer term needs of the beneficiary.

Trustees may therefore find themselves making financial decisions dependent on a disabled or vulnerable beneficiary’s care needs particularly where their needs might often change or as they increase. As such, steps will need to be taken to liaise with the relevant social and health services to obtain the necessary support and recommendations regarding care. Further, consideration will also need to be given to the beneficiaries views and their capacity to make decisions and skills to manage larger sums of money.

We act as a professional trustee for many vulnerable and disabled beneficiaries and we have extensive experience in managing complex and high value trusts. We can assist and advise a trustee on the management of a trust for a vulnerable or disabled beneficiary.

If you need advice or assistance managing a trust for a vulnerable or disabled beneficiary 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.*

NHS funded Continuing Healthcare is available for people who receive care for a primary health need. This is regardless of whether the care is being provided in a nursing home, residential care home or at home.

Continuing Healthcare is only available for the cost of health needs and not social care needs. The differences are;

• Healthcare – in general terms it can be said that such a need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs
• Social Care – in general terms (not a legal definition) it can be said that a social care need is one that is focused on assisting with activities of daily living, maintaining independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to manage complex relationships and (in some circumstances) accessing a care home or other supported accommodation.The assessment process should begin when it appears that an individual may have a care need. For example, when home care is put in place or an individual is moved to a care home. At this stage, the Local Authority will carry out a means test to establish what contribution that individual should be making towards the cost of their care. Continuing Healthcare should also be considered at this point. Sometimes, the Local Authority may decide that the care being provided falls under social care and therefore will not carry out the initial nursing care assessment. If this decision is incorrect, the Local Authority could be acting unlawfully by providing this care. This is because the individual’s needs may go beyond the remit of Local Authority care.

Problems with Continuing Healthcare assessments can arise when there has been a delay in arranging the assessment, there is lack of evidence to support the assessment, or when an assessment has been refused or is unsuccessful. There are options available to individuals facing such circumstances including requesting an appeal of a Continuing Healthcare decision and applying for retrospective Continuing Healthcare, even if the person the assessment relates to has since passed away. If you need any assistance or further information and guidance on the Continuing Healthcare process, please contact our deputyship team.

The Continuing Healthcare assessment is split into two parts. The first is a nursing care checklist which can be carried out by a social worker or healthcare provider. The nursing care checklist is used to establish whether there may be a primary health need. If it appears that there may be a primary health need, the case will be passed to the CCG to conduct a full Continuing Healthcare assessment using the Decision Support Tool. The domains used in both assessments are designed to measure the health care need. Family members and key care providers should be involved in both the nursing care checklist stage and the Decision Support Tool. The views of relatives and care workers with day-to-day contact with the person can be crucial in deciding the outcome of the assessment.

Continuing Healthcare is assessed by the local Clinical Commissioning Group (CCG) and which CCG assesses your relative will depend on which Local Authority they fall under.

* 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.*

It is a sad fact that not every care facility provides the same level of care and cost is a clear factor. Care homes that are run privately may offer better quality facilities and care but at a price unaffordable to many. We have seen care homes where understaffing means that although the basic level of care is met, the individual’s views and feelings may get lost amongst the many other demands on care staff. Professional deputies therefore have a role in ensuring that their clients have the best possible quality of life by ensuring that more than just the basics are met.

Property and affairs deputies support individuals in care homes in a variety of ways. By budgeting they ensure that P’s assets are used for their own needs as far as possible. Deputies have the skills and resources to work with local authorities to ensure P contributes fairly to their care when appropriate. The process of financial assessments when P’s assets are nearing the threshold for local authority contribution can be confusing and a professional deputy will ensure P only pays for what they have to.

Professional deputies look at the holistic needs of each individual when in a care home. We work closely with care providers and other relevant professionals to improve stimulation such as companionship, music or reminiscence therapy. We also instruct physical therapies including physiotherapy, occupational therapy or hydrotherapy. Often these therapies cannot be organised by the care homes or local authorities because of a lack of resources. We have seen many examples of where privately funded therapies provide significant benefit to clients in care homes.

Property and affairs deputies can also give P a voice when care standards fall below what is reasonably expected. They can challenge care homes, local authorities or private companies on their behaviour and increase accountability in the care environment.

At Anthony Gold we are experienced in managing deputyships for clients in a range of care facilities. If you would like to discuss this with us, please contact the Court of Protection team.

Law and guidance

The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the council’s duties towards adults who require care and support and its powers to charge.

Capital limit

The Act says that if a person has capital below £23,250 and above £14,250, they are eligible for council funding to pay for their residential care subject to a contribution from their income. In addition, a top-up fee may need to be paid, in certain circumstances.

Top-up fee

The council has a duty to assess adults who have a need for care and support. If the needs assessment identifies the person’s needs, the council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the cost of those services.

When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget.  However, a person is able to choose a more expensive care home, if a third party or, in certain circumstances, the resident is willing and able to pay the additional cost (the top-up fee).

If no suitable accommodation is available in the amount identified in the personal budget, the council must arrange accommodation in a more expensive care home. In those circumstances, the council should pay the top-up fee.

What can I do if the local authority is charging my relative a top-up fee and they have failed to find a suitable care home for my relative within their personal budget?

It is appropriate to contact the local authority and to let them know that the top-up fee should not be charged in those circumstances. If the local authority continues to say that a top-up fee is payable, a formal complaint against the local authority should be lodged.  If the local authority still says that a top-up fee is payable, it is possible to make a complaint to the Local Government Ombudsman.

The Ombudsman’s role and powers

The Ombudsman investigates ‘maladministration’ and ‘service failure’.  They may also consider whether any fault has had an adverse impact on the person making the complaint.  If there has been a fault which has caused injustice, the Ombudsman may suggest a remedy.

A recent example of where I assisted a family in making a complaint to the Local Government Ombudsman

In a recent case, I assisted a family in making a complaint to the Local Government Ombudsman, after the local authority failed to offer a suitable alternative care home to my client’s mother within her personal budget.  The care home asked my client’s mother to leave the care home, suggesting that they could no longer meet her needs after my client raised a complaint about their mother’s care at the home. The local authority delayed in assessing my client’s mother’s needs. This was even though the situation became very urgent. The local authority placed my client under significant pressure to find an alternative care home without offering any assistance in identifying a suitable home within the personal budget.

The Ombudsman agreed that the local authority was at fault in failing to find a suitable nursing home for my client’s mother within her personal budget.  It recommended that the council take the following actions within a month of the final decision: –

1. Apologise to the family for the fault;
2. Pay the top-up fees paid to date;
3. Continue to pay the top-up fees unless an assessment of their mother confirms that she could move to another suitable home within her budget.

Are the recommendations of the Ombudsman binding?

The Ombudsman’s recommendations are not binding. However, they are usually followed. If the local authority fails to carry out an action recommended by the Ombudsman, or if you wish to challenge the lawfulness of a decision or failure to act by a local authority, the decision could be subject to judicial review proceedings.  Specialist advice is recommended where judicial review proceedings may be appropriate, since applications need to be made quickly, due to strict deadlines that apply.

If you or a relative are concerned that the local authority has failed to carry out their duty and that this has caused an injustice, please contact a member of our Court of Protection team who will be able to assist you in raising a complaint against the local authority, progressing matters to an Ombudsman complaint and/or considering whether you need specialist advice in relation to judicial review proceedings.

* 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.*

What is it?

The Case Management Pilot scheme was to operate from 1 September 2016 to 31 August 2017 however, the Court of Protection have recently decided to continue the piloted procedures. The Court of Protection Rules and accompanying Practice Directions are to be revised and consolidated before the end of the year and therefore the pilot schemes have been extended until the consolidated Rules are in force.

The Case Management Pilot sets out 3 pathways for Court of Protection proceedings. The 3 pathways are:

1. Property and Affairs;
2. Health and Welfare; and
3. A hybrid pathway for cases that have elements of both Property and Affairs and Health and Welfare.

When does it apply?

The Case Management Pilot applies to all proceedings started in the Court of Protection unless they fall within the specified categories, including but not limited to:

1. Uncontested applications;
2. Applications for statutory will and gifts; and
3. Applications made by the Public Guardian.

Therefore contested Deputyship applications will fall under the rules of the Case Management Pilot.

What is the purpose of it?

The idea of the Case Management Pilot is to encourage parties to reach an agreement regarding the case at an earlier stage. Where early resolution is reached, this will result in less hearings and therefore lower costs. In cases where the application costs are payable from P’s fund, reducing the overall cost is a crucial element especially where P’s resources are limited.

What happens?

Once an application has become contested, the case is allocated to the appropriate Case Management Pathway. The case will then be allocated for a Dispute Resolution Hearing. All parties will normally be required to attend the Dispute Resolution Hearing and it is an opportunity for the parties to discuss the issues and try and settle the case. The Judge present may give their views on the likely outcome of the proceedings in order to encourage settlement. If the parties settle then a final order can be made, if they are not able to reach an agreement then the Court will give directions for the Final Hearing.

The Dispute Resolution Hearing is not a fact-finding hearing and indeed the content of the hearing cannot be disclosed or used as evidence. Therefore the Final Hearing will be in front of a different Judge to that of the Dispute Resolution Hearing and that Judge may come to a different conclusion.

Our experience

Anthony Gold’s Court of Protection Department have significant experience in Deputyship applications, including contested applications. We have recently had a case allocated to the Property and Affairs Case Management Pilot where the Judge indicated his views at the Dispute Resolution Hearing, following which an agreement was reached in favour of our client.

If you would like further advice about the Case Management Pilot or making a Deputyship application, please do not hesitate to contact us.

Lasting Powers of Attorney (LPAs) and Deputyship Orders are legal mechanisms by which the appointed person can make decisions on behalf of a person who lacks mental capacity. The types of decisions include dealing with their property and affairs or health and welfare.

LPA’s can only be made by a person before they lose mental capacity. The individual, known formally as the donor, makes a fully informed choice about whom they want to appoint to act on their behalf if they lose their mental capacity at some point in the future.

It is a useful preparatory step to take and allows an individual greater control to decide whether they would like a relative/friend to act as their attorney or whether a professional should be appointed to act instead. The individual is also able to set out exactly which decisions they would like their chosen attorney(s) to make on their behalf and they can set out certain restrictions on their decision-making powers.

A Deputy is appointed following an application to the Court, made by a third party on behalf of an individual, after they have lost (or are suspected to have lost) their mental capacity.  A Deputy will be required where no other provision has been made to deal with an incapacitated persons affairs.

The application is made to the Court of Protection and is often presented to the Court by a third party such as a family member, friend, social services or a professional advisor such as a solicitor.  The application process is a formal one and requires the person making the application to file evidence on capacity.  It is important to ensure that the evidence is presented in accordance with the Mental Capacity Act 2005 and that the applicant is a suitable candidate for Deputy.

* 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.*

Frequently a Deputyship Order appointing someone as Property and Affairs Deputy does not include authority to purchase or sell a property or carry out adaptation works on a property for a Protected Party.  If such authority is required a separate application needs to be made to the Court of Protection to obtain this additional authority.

A detailed witness statement should be prepared and submitted to the Court with the relevant fee.  The existing Deputy should provide the Court with a clear indication of the specific order or directions sought. It is advisable to provide an estimated figure for the purchase of the property and how the capital expense will impact on the remaining fund.

It is best practice to provide the Court with details of the property that it is proposed is purchase for the Protected Party and why that specific purchase satisfies the best interests decision making that a Deputy must undertake.   If building or adaptation works are to be undertaken an estimate should be enclosed for these works and a breakdown provided of the types of work required.

If an Independent Financial Advisor or an Occupational Therapist have been instructed to comment on the sustainability of the Protected Party’s fund or to obtain an estimate for any works proposed, it would be helpful to provide a summary of their advice within the Court application.

As part of the Court of Protection team, we manage Deputyships for our clients and assist with the procedure if a further authority is required.  If you require assistance or guidance in this area please contact our Court of Protection Team on 0207 940 9060.

* 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 appoints deputies and Lasting Powers of Attorneys to protect the assets of people who lack mental capacity.  Many of the hearings in the Court of Protection are confidential. This is because very vulnerable people need confidentiality in order to ensure that unscrupulous persons do not take advantage of them.  The same applies to deputies and attorneys who should not, as a general rule, disclose private and confidential information to other parties.

Against that, deputies do have an obligation to involve the protected person and their carers/family in decision making as much as possible. Deputies therefore have a discretion to release some information to relevant parties.  That discretion is however limited and deputies must at all times ensure that their client’s are not made vulnerable to exploitation.

This does leave deputies in a difficult position.  Many deputies, particularly lay deputies, will take the position that they are not going to disclose anything to anyone. This however, can be contrary to their clients’ best interests. Families and carers can add real value to the clients life experience and should not be shut out.

If there is some real concern as to whether there is some information that should be disclosed or not, it is possible to go to the Court of Protection and seek an Order that it either is disclosed or is not disclosed.

If there is real concern as to a deputy or an attorney’s conduct, a complaint can be made to the Office of the Public Guardian, which is the government body that supervises deputies and attorneys.  They can advise a deputy as to the appropriateness of whether information is disclosed or not. You can contact them on Telephone – 0300 456 0300 or at customerservices@publicguargian.gsi.gov.uk

If family or carers have grave concerns as to a deputy or attorney’s actions, they should take legal advice. This might include writing formally to the deputy setting out the reasons why disclosure is in the best interest of the protected party. If that is not sufficient, they do that the right to take the matter to the Court of Protection, who can remove the deputy or attorney.

* 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.*

 

In the matter of IH (Observance of Muslim Practice) the Court of Protection considered two important issues stemming from the observance of an individual’s religious custom or practice.

P, in this case, was a 39-year-old man with profound learning difficulties.  He functioned at the level of a 1-3-year-old and suffered from atypical autism and various mood disorders.  P was moved into assisted living accommodation provided and paid for by his Local Authority.  Before moving into that facility, P had lived with his parents and siblings in the family home.  The family practised the Muslim faith devoutly.

Following a dispute relating to P’s care (between P’s family and the Local Authority) two-main questions were considered before the Court:

1.  Whether it was in P’s best interests to fast during the daylight hours of Ramadan;
2. Whether it was in P’s best interests for his axillary and pubic hair to be trimmed in accordance with Islamic cultural and religious practice.

There was no dispute about the fact that P lacked the capacity to make these decisions.  The main issue was whether the practises where in P’s best interests.

With regards to the proposed fast, P was unable to explain the purpose of a fast or its effect on his body.  P was unable to consider the consequences of fasting or the risks of choosing not to fast.  It was accepted that P would never regain the capacity to make these decisions.  In addition, P was unable to understand the reasons for removal of his axillary and pubic hair or whether that removal was for a religious or other reason.

Having considered expert evidence submitted to the Court, it was highlighted that “not all actions or observances within Islam, are obligatory…some are recommended, others optional…some reprehensible…others prohibited”.  There were also different arrangements permissible within the faith for those who lack ‘legal competence’ or capacity.  There was a specific exemption from fasting for the incapacitated.  The removal of hair was found to be ‘recommended practice’ but certainly not obligatory.

It was held that the withholding of food and water would cause P “stress or distress; this may cause him to become irritable and/or aggressive…increasing the risk to staff and himself”.   It was held that the trimming of P’s pubic and axillary hair would serve no spiritual or religious purpose to P and the Judge declared that she wished to spare P from an act that might, in fact, cause additional stress, whilst wanting to protect P and the staff from the risk of potential harm during the shaving process.  It was concluded that “P never had the capacity to understand the tenants of Islam; the benefits of adherence to such rituals do not obtain for him, but for others”.

This case offers interesting guidance to those working within adult services, which have responsibility for caring for individuals of the Muslim faith.  The Court did specifically record that each best interests decision must turn on its specific facts and therefore serves to demonstrate the Court’s possible approach to these matters.

* 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.*