Care home fees for living relative - who is liable?

Pollycat

You don't need a solicitor to do POA application.
The guidance for completion s pretty good.
I think there is a guide on here somewhere too.
Does the relative have mental capacity?

I'm classed as my parent's next of kin as I'm the eldest daughter (according to our county council mental health team).
My sister is classed as representative (by Deprivation of Liberty Safeguarding team (DoLS).

We do not hold POA for our parent.
Neither of us are responsible for unpaid care home fees.

68ComebackSpecial

mickym said:

My friend is the residents brother.

He only ever told the care home that he was a point of contact and next of kin. Never said he was liable to support his brother.

The brother I believe has been making payments so far as the issue of non payment over the last 2 or so years has never been mentioned. 

As mentioned earlier this document they are asking to be signed states:

- if the representative named is also the POA then they aren't personally liable for payments and they can solely come out of the residents own funds 

-if they aren't the POA then they will be liable for any fees not paid by the resident.

Going through the POA process has been made difficult due to covid restrictions with care homes. No one has been able to visit so not sure how a solicitor could be involved to carry out the process, i.e. witness of signatures etc.

Has anyone done it here over the last year or so?

Even if the brother signs the necessary documents naming your friend as his Attorney he will not hold that position until such time as the brother loses capacity and the POA is made "live". As an example my MIL has named myself and my husband as her Attorneys but, as she retains capacity and the POA is still inactive, when we signed as guarantors for potential fees for her to go on the waiting list at a care home we did so in our capacity as son and daughter in law and therefore we are personally liable.

If the brother wishes to use a solicitor to arrange the POA this shouldn't be insurmountable - we have instructed our solicitor to rewrite our wills via Zoom calls. Your friend and the care home should be able to facilitate this, the documents posted and the staff witnessing the signature.

TBagpuss

This all sounds very strange. I'd suggest that your friend writes back and states that he is the residents brother and first point of contact, and that brother has named him as representative in order to ensure that he has full access to relevant information and it kept up to date regarding brother's health,  but that he does not currently hold a POA , so is not responsible for managing brother's financial affairs, and that he has no contract with the home and no financial responsibility for his brother, so obviously has no personal liability for any costs.

Personally, i would probably say that he assumes that the letter was sent to him in error as it is clearly only applicable in a case where the named representative has signed a contract with the home , as that way he gives them a face-saving way to back down, and is able to remain on good terms with them (and it may well be true!)

mrschaucer

68ComebackSpecial said:

Even if the brother signs the necessary documents naming your friend as his Attorney he will not hold that position until such time as the brother loses capacity and the POA is made "live". As an example my MIL has named myself and my husband as her Attorneys but, as she retains capacity and the POA is still inactive, 

It is quite possible using a modern LPA for the donor to appoint an Attorney to act for him whilst still retaining capacity - he does not need to become incapacitated for the Power to be used;  the Power just needs to be registered and it is then "live".  I think the old "EPAs" were used in the way 68ComebackSpecial has outlined.

wannabe_a_saver

mrschaucer said:

68ComebackSpecial said:

Even if the brother signs the necessary documents naming your friend as his Attorney he will not hold that position until such time as the brother loses capacity and the POA is made "live". As an example my MIL has named myself and my husband as her Attorneys but, as she retains capacity and the POA is still inactive, 

It is quite possible using a modern LPA for the donor to appoint an Attorney to act for him whilst still retaining capacity - he does not need to become incapacitated for the Power to be used;  the Power just needs to be registered and it is then "live".  I think the old "EPAs" were used in the way 68ComebackSpecial has outlined.

An attorney for finances can act while the donor still has capacity with their consent, an attorney for health and welfare can't. 

mrschaucer

Yes indeed.  I'd forgotten that bit!

Vampgirl

mickym said:

As mentioned earlier this document they are asking to be signed states:

- if the representative named is also the POA then they aren't personally liable for payments and they can solely come out of the residents own funds 

-if they aren't the POA then they will be liable for any fees not paid by the resident.

When my MIL went into a care home (last year, arranged and paid for by NHS continuing care) the home sent us and my BIL a contract to sign with exactly the same clause. I don't recall it saying that if we didn't respond then we'd be deemed to have accepted it though - but I can't see how that could be enforced!

Anyway, none of us had POA (MIL wouldn't even talk about setting one up) so we just ignored it and made sure BIL did too. MIL was only there for a few months and every now and again the home would call one of us to try to get us to sign but we just kept refusing saying we didn't have POA so wouldn't be signing anything. Personally I think its a really sneaky clause.