Assets whilst in a care home

Trebor16

Morrison117 wrote: »

No, he is not giving correct information, because Ianua1 says (my bolding)

The entitlement would be under the 2006 Act - not under an Act that is no longer in force or on the statute book. Any entitlement under an Act that has been entirely repealed no longer applies. Only if certain sections of an Act are repealed - a partial repeal - does that Act remain on the statute book and provide 'entitlement' under the non-repealed sections remaining. But if an Act is repealed entirely/in total as was the 1946 Act, it ceases to provide 'legal entitlement'.

So the information given by ianua1 was incorrect.

But if the 2006 act gives the same entitlement to health care as the 1946 act, then he is giving correct information, he is just not quoting the current act. If the 2006 act deviated from the original 1946 act then his information would be incorrect.

Morrison117

Trebor16 wrote: »

But if the 2006 act gives the same entitlement to health care as the 1946 act, then he is giving correct information, he is just not quoting the current act. If the 2006 act deviated from the original 1946 act then his information would be incorrect.

No, Trebor, his information is not correct.

Nobody has any entitlement to anything under the repealed 1946 Act, because that Act no longer has any force in law. It is still a historic document and it was the original NHS Act. But it no longer has any power because it is no longer in force due to its repeal in 1977 by the 1977 Act (which was later repealed in 2006 by the 2006 Act) so there is no point quoting it as a source of 'entitlement'.

Language is important when quoting entitlement according to Acts of law. As it is equally important to quote whatever Coughlan, Grogan or anything else 'said'. If the quote is inaccurate, it is misleading.

Ianua1 is quoting the incorrect Act and it is important for others to know that, as it is no longer in force as an Act of Parliament, a Law, a quotable source that can be relied upon in a court of law, or in serious discussion and/or correspondence when trying to achieve continuing healthcare funding.

Had he said "under the 2006 NHS Act" it would have been correct information.

Errata has asked that we give references for this discussion, but I can't do that because I'm classified as a new user of this forum, so you will have to search for legislation dot gov dot uk and then search for the 1977 NHS Act, scroll down to Schedule 16 once you find it, and then you will see that it says that the extent of the repeal of the 1946 NHS Act was the Repeal of the Whole Act of 1946.

Then, do the same again for the 2006 Act.

(How long before I'm allowed to post links? Does anyone know?)

Veryannoyed_3

Anyone who tries the "it's all illegal" route gets nowhere. It's common knowledge among people who have been advised to take this stance that PCT and SHA appeal panels will not consider questions of legality. The only way forward is on the DST (Decision Support Tool) and trying to make out the best possible case for the patient on that.

I'd also like to add a word of caution. Before deciding not to pay the fees make sure you take good legal advice so that you are prepared for what is likely to follow. Either a charge may be put on the patient's home, the patient or you as their attorney may be taken to court to recover the fees, or you may find that social services complain to the Court of Protection that you are not acting in the patient's best interests and they may apply to take over the power of attorney.

In the worst scenario, you could be landed with personal court costs (to be paid out of your own account and not that of the patient) and the Court of Protection could take over administration of the patient's finances, a figure of £40k a year was recently quoted to me as being the fees for that.

It isn't right that patients should be forced to sell their homes to pay fees but if you are going to take action yourself make sure you consult a specialist solicitor so that you know what the financial consequences to you personally could be if you refuse to pay the fees.

I could recommend a first class solicitor but it may be against the board rules so I'll simply say that they are based in Cardiff and have impressed me by their knowledge of the subject, their in depth assessment of my relative's case, the large number of cases they have won for their clients and their honesty.

Trebor16

Veryannoyed wrote: »

I'd also like to add a word of caution. Before deciding not to pay the fees make sure you take good legal advice so that you are prepared for what is likely to follow. Either a charge may be put on the patient's home, the patient or you as their attorney may be taken to court to recover the fees, or you may find that social services complain to the Court of Protection that you are not acting in the patient's best interests and they may apply to take over the power of attorney.

Not totally correct. As the debt is not that of the attorney and is regarded as the debt of the donor then the attorney can not be directly taken to court to recover the disputed fees.

They can only put a charge on a home if it is solely owned by the donor. If it is jointly owned by another person then they cannot apply a charge to the property.

Social services may complain to the Office of the Public Guardian (not the Court of Protection) but if the complaint is solely on the basis of the attorney protecting the donors best financial interests then neither the OPG or the Court of Protection have the jurisdiction to make an attorney pay an outstanding and disputed civil debt.

Veryannoyed wrote:

In the worst scenario, you could be landed with personal court costs (to be paid out of your own account and not that of the patient) and the Court of Protection could take over administration of the patient's finances, a figure of £40k a year was recently quoted to me as being the fees for that.

I would be very interested as to where you get the figure of £40k a year as fees to cover administration costs of a donors estate as that is well outside of the level of fees the OPG can charge for supervision of a donors estate.

Before a costs order can be made the CoP has to be satisfied the attorney acted unreasonably.

Veryannoyed wrote:

It isn't right that patients should be forced to sell their homes to pay fees but if you are going to take action yourself make sure you consult a specialist solicitor so that you know what the financial consequences to you personally could be if you refuse to pay the fees.

I agree about taking advice and thinking carefully about taking such action.

Veryannoyed wrote:

I could recommend a first class solicitor but it may be against the board rules so I'll simply say that they are based in Cardiff and have impressed me by their knowledge of the subject, their in depth assessment of my relative's case, the large number of cases they have won for their clients and their honesty.

First name rhymes with Pugh and second with Frames by any chance?

Errata

Hugh James have acted for me in another matter. I found them very knowledgeable and although I live in Yorkshire, communication was superb. There was no certainty that the case would be won, it was, and my costs were covered by insurance which they organised.

Morrison117

Trebor16 wrote: »

Not totally correct. As the debt is not that of the attorney and is regarded as the debt of the donor then the attorney can not be directly taken to court to recover the disputed fees.

They can only put a charge on a home if it is solely owned by the donor. If it is jointly owned by another person then they cannot apply a charge to the property.

Social services may complain to the Office of the Public Guardian (not the Court of Protection) but if the complaint is solely on the basis of the attorney protecting the donors best financial interests then neither the OPG or the Court of Protection have the jurisdiction to make an attorney pay an outstanding and disputed civil debt.



I would be very interested as to where you get the figure of £40k a year as fees to cover administration costs of a donors estate as that is well outside of the level of fees the OPG can charge for supervision of a donors estate.

Before a costs order can be made the CoP has to be satisfied the attorney acted unreasonably.



I agree about taking advice and thinking carefully about taking such action.



First name rhymes with Pugh and second with Frames by any chance?

Not totally correct either, Trebor.

The debt is of course and will remain that of the LPA donor, i.e. the person in care home. The Attorney is standing in the shoes of the donor, and so is required to act in the best interests of the donor at all times and in all matters. So the attorney can be taken to court, in the same way that the donor could be taken to court if she or he had the mental capacity for such and if she or he had never instructed an attorney.

The attorney can be taken to court for refusing to pay care home costs, because the attorney has a legal duty to act in the best interests of the donor.

If the Court decides that the attorney is not 'acting in the best interests' of the LPA donor, and if the Court then decides that the Attorney should pay the care home fees, that is exactly what the Attorney will be required to do. Those care home fees will, of course, be paid out of the assets/estate/monies of the person in care, the donor of the LPA - not out of the personal assets of the Attorney.

However, the costs of the Court case will then be 'charged' to the personal finances of the Attorney, and the Court will instruct that those costs cannot be paid from the personal assets of the Donor of the LPA. The legal costs, the court case costs can only be paid from the personal monies of the Attorney, if she or he is deemed by the Court to be NOT acting in the best interests of the LPA donor by refusing to pay the care home fees during the dispute about eligibility for continuing care. (There will no doubt be anomalies to this but I don't know of any yet.)

It may be the OPG that the LA complains to in the first instance. The OPG then passes the case to the Court of Protection, because the OPG does not have the appropriate powers to handle such things - the Court of Protection does have the appropriate powers.

The Court of Protection has no powers to intervene in a dispute between an individual and the PCT. That is for a different kind of court, and that does not come within the remit of the Court of Protection.

The Court of Protection is there to be interested in protecting vulnerable persons. So the Court will decide on the basis of the safety and security and well-being and protection of the vulnerable person. Not on the merits or demerits of any assessment and refusal of continuing care funding. The vulnerable person could be thrown out into the care home car park, if fees are not paid by the Attorney, as instructed. That has happened in the past. No, I can't post a link to that kind of thing because the Court of Protection does not often make available in the public domain such decisions.

There is no one-size-fits-all. So beware and be warned to be aware.

Trebor16

Morrison117 wrote: »

Not totally correct either, Trebor.

The debt is of course and will remain that of the LPA donor, i.e. the person in care home. The Attorney is standing in the shoes of the donor, and so is required to act in the best interests of the donor at all times and in all matters. So the attorney can be taken to court, in the same way that the donor could be taken to court if she or he had the mental capacity for such and if she or he had never instructed an attorney.

I'm sorry but you are totally wrong. The attorney cannot be taken to court in the same way that the donor can.

Morrison117 wrote:

The attorney can be taken to court for refusing to pay care home costs, because the attorney has a legal duty to act in the best interests of the donor.

No they can't, they can only pursue the donor. The attorney has a duty to act in donors best interests but if there was ever any action taken then the attorney would not be the named defendant.

Morrison117 wrote:

If the Court decides that the attorney is not 'acting in the best interests' of the LPA donor, and if the Court then decides that the Attorney should pay the care home fees, that is exactly what the Attorney will be required to do. Those care home fees will, of course, be paid out of the assets/estate/monies of the person in care, the donor of the LPA - not out of the personal assets of the Attorney.

Which court are you referring to? If you mean a civil court and the donor is adjudged to be liable for the care home fees then yes, the attorney would then either have to pay the fees or consider an appeal if it is in the best interests of the donor.

Morrison117 wrote:

However, the costs of the Court case will then be 'charged' to the personal finances of the Attorney, and the Court will instruct that those costs cannot be paid from the personal assets of the Donor of the LPA. The legal costs, the court case costs can only be paid from the personal monies of the Attorney, if she or he is deemed by the Court to be NOT acting in the best interests of the LPA donor by refusing to pay the care home fees during the dispute about eligibility for continuing care. (There will no doubt be anomalies to this but I don't know of any yet.)

Again, which court are you referring to who can make such an order?

Morrison117 wrote:

It may be the OPG that the LA complains to in the first instance. The OPG then passes the case to the Court of Protection, because the OPG does not have the appropriate powers to handle such things - the Court of Protection does have the appropriate powers.

The OPG will only pass it to the Court of Protection if they feel it is a matter within the jurisdiction of the CoP. The CoP has no jurisdiction to order an attorney to pay a civil debt.

Morrison wrote:

The Court of Protection has no powers to intervene in a dispute between an individual and the PCT. That is for a different kind of court, and that does not come within the remit of the Court of Protection.

Neither does a dispute between a local authority or care home come within the remit of the CoP.

Morrison117 wrote:

The Court of Protection is there to be interested in protecting vulnerable persons. So the Court will decide on the basis of the safety and security and well-being and protection of the vulnerable person. Not on the merits or demerits of any assessment and refusal of continuing care funding. The vulnerable person could be thrown out into the care home car park, if fees are not paid by the Attorney, as instructed. That has happened in the past. No, I can't post a link to that kind of thing because the Court of Protection does not often make available in the public domain such decisions.

As the local authority would have a duty to step in before a person is evicted then it is unlikely a person would be thrown on to the streets with nowhere to go because of unpaid fees. I guess that's the reason why you can't post a link because of the duty of a local authority to accomodate them.

There is also the issue of the attorneys ability to represent a donor. If they have a EPA or LPA for property and finance then the attorney cannot speak for the donor on matter relating to their welfare.

ianua1

National Health Service Act 1946, 1977, 2006.......'free at the point of delivery.' The founding principles are the same. The Booker Case of October 2010 applied both the Health Act and the Coughlan Judgement.

Morrison117

I'm not wrong.

The donor cannot be pursued - she or he has handed over responsiblity to the Attorney. So the Attorney is responsible for unpaid bills/debts/finances. Not the donor. That's the whole point of LPA. The donor hands the responsibility to the Attorney - and if the Attorney isn't willing to handle that legal responsibility, the attorney shouldn't accept the appointment in the first place.

I'm referring to the Court of Protection at all times. The Court of Protection has the power to decide whether or not the Attorney is acting in the best interest of the donor. Then to make orders according to that decision.

I can't post a link because the case is not available in the public domain - as is the situation with the majority of Court of Protection decisions.

The person who was thrown out onto the car park is another case - not the one that I have intimate and personal knowledge of. But I know a man who does have personal and intimate knowledge of the person who was thrown out into the car park. (And collected by her daughter from said car park with the local authority waiting on the side.)

I am talking about a registereed LPA for property and finance - not welfare - and that was the issue when it came to pay or not to pay. Paying fees is the responsibility of the Attorney for property and finance - not the Attorney for welfare.

Morrison117

ianua1 wrote: »

National Health Service Act 1946, 1977, 2006.......'free at the point of delivery.' The founding principles are the same. The Booker Case of October 2010 applied both the Health Act and the Coughlan Judgement.

It didn't apply the 1946! The Booker Case applied the Health Act in place at the time.

Every single judgment gives details of the abbreviations used throughout the following 75 pages, or whatever. So the first time the Health Act is mentioned it is made quite clear prescisely which Health Act is meant.

Coughlan refers to the Health Act of 1977, with merely fleeting mention of the 1946 as the original act which then gave birth to the 1977. (Not those words used of course, but similar.)