Assets whilst in a care home

Trebor16

Morrison117 wrote: »

I'm not wrong.

I'm afraid you are.

Morrison117 wrote:

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.

The donor can be pursued and it is their name who will appear on any court papers, not that of the attorney. Should a judgement be gained, it will be the donors name that goes on the court records, not the attorneys. That is why they have procedures within the Civil Procedure Rules for dealing with cases where the defendant lacks mental capacity.

Morrison117 wrote:

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.

And that is all they can decide on. They cannot decide on issues involving outstanding payments and the only costs they can order an attorney to pay are in relation to any proceedings within the Court of Protection, and only if they regard the attorney to have acted unreasonably. They have no jurisdiction whatsoever in disputes relating to unpaid fees.

Morrison wrote:

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.)

In other words, the LA were ready and waiting to re-home the person straight away.

Morrison117 wrote:

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.

Indeed. And the attorney with the EPA or LPA for finance and property is obliged to act in the donors best interests, including following any instructions that may have been given by the donor while they still had capacity.

ianua1

Morrison117 wrote: »

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.)

The founding principles are the same. 'free at the point of delivery.' The criteria by which Mrs Grogan was assessed was reliant on the test I specified. The judge then found the criteria to be 'fatally flawed.' It seems that you are reading small sections of the Grogan Case with out understanding the full meaning behind the case, getting hung up on the correct word order without understanding the case fully. Read the transcript and you'll see what he was referring to when he made reference to the Quanty and Quality test.

Morrison117

Trevor, I am not wrong.

I didn't mention the names that appear on the Court of Protection papers. Of course it is the names of both the donor and the attorney. Or it has been the names of the donor and the attorney in the papers that I am looking at. It's also the names of those involved via the PCT or the NHS or the LA or the .... .

It will be both names that go on the judgment papers, as will the names of those involved in the Court of Protection hearing. Including the solicitors involved and the LA or PCT representatives. Or it is so on the papers that I am looking at.

All names will also be found on the Costs Order that follows later. As are the names of the solicitors acting on behalf of ....

The Court of Protection has jurisdiction to instruct an Attorney to pay the fees. Or it is so on the papers that I am looking at.

The fact that the LA was waiting to rehome the person was not my point of focus. My focus was on the person being evicted from the care home and the fact that her daughter was waiting in the car park for her. She did not have any intention of allowing her mother to be shoved into a care home chosen by the local authority. She cared only about her mother. She cared also about the rum advice that she had followed that advised her not to pay the care home fees, but that's a different issue altogether.

The Attorney is required to act on the wording of and powers granted by the LPA - not on something that the Attorney may not be able to prove just because it may have been said at some time in the dim and distant past. Such as "I don't ever want to go into a care home".

So if the Donor ever said that and then eventually was placed into a care home, would the Attorney be held liable for that decision against the unproven allegedly-spoken words of someone who developed dementia and lost the mental capacity to make such a decision for themselves? No.

Morrison117

ianua1 wrote: »

The founding principles are the same. 'free at the point of delivery.' The criteria by which Mrs Grogan was assessed was reliant on the test I specified. The judge then found the criteria to be 'fatally flawed.' It seems that you are reading small sections of the Grogan Case with out understanding the full meaning behind the case, getting hung up on the correct word order without understanding the case fully. Read the transcript and you'll see what he was referring to when he made reference to the Quanty and Quality test.

I am reading the full transcript. From start to finish. I'm not reading sections of it - but I can't post the full transcript here, can I!!

Paragraph by paragraph, I have read it, and I am understanding the case fully.

In that transcript there is also mention of the fact that 'each and every word' is significant, and Judge goes through the words in turn where he is concerned about interpretation.

So it's not that I'm getting hung up on words - the Judge was 'hung up' on the words used, or rather gave his full consideration to the words used.

Trebor16

Morrison117 wrote: »

Trevor, I am not wrong.

I'm afraid you are, very wrong indeed.

Morrison wrote:

I didn't mention the names that appear on the Court of Protection papers. Of course it is the names of both the donor and the attorney. Or it has been the names of the donor and the attorney in the papers that I am looking at. It's also the names of those involved via the PCT or the NHS or the LA or the .... .

You seem to be confusing two seperate issues here. On the one hand you mention the example of where nursing home fees have not been paid. The Court of Protection have no jurisdiction over such matters and they cannot compel an attorney to pay fees.

Morrison117 wrote:

It will be both names that go on the judgment papers, as will the names of those involved in the Court of Protection hearing. Including the solicitors involved and the LA or PCT representatives. Or it is so on the papers that I am looking at.

But not in a civil court. If litigation action was taken it would be in the name of the donor only. Also, on Court of Protection Papers, the donor would not be named in full but would be referred to by their initials. Any respondents who are joined in the action with the first respondant would also be listed by their initials only. I say this as I look at a draft order made by the Court of Protection a mere 8 days ago.

Morrison117 wrote:

All names will also be found on the Costs Order that follows later. As are the names of the solicitors acting on behalf of ....

Are you sure about that?

Morrison117 wrote:

The Court of Protection has jurisdiction to instruct an Attorney to pay the fees. Or it is so on the papers that I am looking at.

The Court of Protection does not have the jurisdiction to order an attorney to pay fees that are disputed. That would be a total breach of its authority.

Morrison117 wrote:

The Attorney is required to act on the wording of and powers granted by the LPA - not on something that the Attorney may not be able to prove just because it may have been said at some time in the dim and distant past. Such as "I don't ever want to go into a care home".

The example you give is a welfare issue. If a donor has previously given instructions to an attorney then the attorney should respect those instructions act in the best interests of the donor.

Morrison117 wrote:

So if the Donor ever said that and then eventually was placed into a care home, would the Attorney be held liable for that decision against the unproven allegedly-spoken words of someone who developed dementia and lost the mental capacity to make such a decision for themselves? No.

You know as well as I do that DOLs applications can be made by the local authority regardless of the wishes of an individual. But if a donor told their attorney to only make payments in respect of lawful debts and to dispute debts where local authorities and the NHS have not acted lawfully then the attorney would have a duty to respect that. An attorney would also be acting in the donors best interests if a LA or PCT have not acted lawfully and the attorney then refused to pay the debt in such circumstances.

Morrison117

Trebor.

The Court of Protection has the power to strip someone of their Attorneyship. To do that the Court must first have been notified of a potential problem, such as that the Attorney is not acting in the best interests of the donor. (I'm not saying that's right and proper or just - that's just the facts as I have them in front of me.) A local authority or a PCT can submit a case to the Court of Protection to say that the Attorney is not acting in the best interests of the donor.

Then the court goes through all the papers, submitted by all parties. The hearing follows, and all parties are present and/or represented. There will be applicants and respondents mentioned, at first by name, thereafter by initials.

I'm not looking at Draft papers - I'm looking at the full papers of the full hearing and the final judgment, and the costs order. The front page lists all names in full. Thereafter initials are used, of course. There will be a 'bundle' submitted, which is sent to the respondent, again listing all names in full, with initials used thereafter.

The attorney is only allowed to act on the wording of the LPA. Otherwise hearsay enters into it and hearsay does not stand up in any court. Imagine the scenario if Mr or Mrs X draws up their LPA, and the wording says "A and B and C shall be the powers I give to my attorney", then the attorney turns round and says "aaah, but Mr X always said that he wanted D and E and F to happen". If it's not in the LPA, the attorney has no legal right to do D or E or F.

I've already said that I am looking at Court of Protection paperwork.I say again that I am only talking of Court of Protection paperwork. That is the only paperwork and case that I am looking at.

Veryannoyed_3

Trebor, the details I have given are based on my own personal experience and also advice from a leading solicitor in the field.

Unfortunately, there is a lot of misinformation on the internet, in particular on another forum where it concerns me that correct information is removed because it doesn't correspond with the wacky theories of some of the posters.

I would always advise anyone facing issues concerning the Court of Protection and / or nursing home fees to take advice from a solicitor, the penalties for getting it wrong could be catastrophic as has been outlined on the other forum.

Errata

so it seemed that where this system was in place, it was practically impossible to receive NHS funding for care home fees.

No, it wasn't. Somewhere on the net there's a document which gives a league table of all the PCT's and the number of CHC's each awarded year by year. It starts before 2007. No PCT in any year made no awards.

Trebor16

Morrison117 wrote: »

Trebor.

The Court of Protection has the power to strip someone of their Attorneyship. To do that the Court must first have been notified of a potential problem, such as that the Attorney is not acting in the best interests of the donor. (I'm not saying that's right and proper or just - that's just the facts as I have them in front of me.) A local authority or a PCT can submit a case to the Court of Protection to say that the Attorney is not acting in the best interests of the donor.

Then the court goes through all the papers, submitted by all parties. The hearing follows, and all parties are present and/or represented. There will be applicants and respondents mentioned, at first by name, thereafter by initials.

I'm not looking at Draft papers - I'm looking at the full papers of the full hearing and the final judgment, and the costs order. The front page lists all names in full. Thereafter initials are used, of course. There will be a 'bundle' submitted, which is sent to the respondent, again listing all names in full, with initials used thereafter.

The attorney is only allowed to act on the wording of the LPA. Otherwise hearsay enters into it and hearsay does not stand up in any court. Imagine the scenario if Mr or Mrs X draws up their LPA, and the wording says "A and B and C shall be the powers I give to my attorney", then the attorney turns round and says "aaah, but Mr X always said that he wanted D and E and F to happen". If it's not in the LPA, the attorney has no legal right to do D or E or F.

I've already said that I am looking at Court of Protection paperwork.I say again that I am only talking of Court of Protection paperwork. That is the only paperwork and case that I am looking at.

You still haven't responded to the point about the Court of Protection having the ability to order an attorney to discharge a debt where it is disputed.

Morrison117

Trebor16 wrote: »

You still haven't responded to the point about the Court of Protection having the ability to order an attorney to discharge a debt where it is disputed.

My sincere apologies for missing out one of your questions, Trebor - I'm afraid I find it very difficult to get through a post that has so many quotes within it. It disturbs the flow of the debate, IMO, and I found your post difficult to read and respond to. So it's possibly for that reason that I didn't respond to all of your questions, but missed one out.

To answer your question: the Court of Protection insisted that the Attorney paid the care home fees, in line with the decision on the day: namely, that the Attorney was seen to be not acting in the best interests of the donor. There was also discussion of the Attorneyship being removed from the Attorney if the decision was ignored, and a Court appointed deputy could then be put in place, with all that that entails.

The question of the dispute about Continuing Healthcare was for another court, said the 'Judge of the day', but the disputed fees still had to be paid, according to the Judge's decision.

The issue of the dispute about Continuing Healthcare having been refused several times over and appealed several times over did not give the Attorney the right to refuse to pay fees required to maintain the Donor in the care home. The dispute about Continuing Healthcare was for another Court, said the 'Judge of the day'.

Timescales were given for actions to be taken by the Attorney. The costs order was accompanied by a full breakdown of all costs incurred by the applicant, names and dates and details of everything involved. Individual bills were supplied as part of the paperwork, all named and dated and fully detailed. The individual sums of money involved were all added up and a final sum was arrived at.

Does that answer your question, Trebor? If not, I am afraid I don't have the time or energy to answer any more. I'm beginning to feel as if I'm on trial here and have done something wrong, which I am not and have not. I have given you the facts of the case based on my own experience and on my own reading of all the papers involved, from start to finish. So I am absolutely confident in everything I have written about this. I have said all there is to say.