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State funding for care home fees – the battle rages on

As this is the third article I have written about NHS Continuing Care funding for people in residential or nursing care. I will start with a brief recap. There is a clear division made based on the primary reason for a person being in a care home. This is to establish whether the reason is for social care or for health related needs. This is decided by an assessment process, which examines a person’s care needs under twelve headings or domains. Four of these domains deal mainly with mental health such as behaviour and communication and the other eight look at the physical situation for example mobility and nutrition. The level of need in each of the twelve domains is graded and the severity and interaction between the different needs is then the subject of a panel decision as to whether the NHS should provide total care funding having accepted that the primary need is health related. This is not means tested and is quite separate from Local Authority funding through Social Services, which is based on a financial assessment. A number of relevant persons such as a Nurse Assessor, a Community Psychiatric Nurse or District Nurse, a Social Worker and a representative of the Care Home should conduct these assessments. The family can also attend and give input with or without professional legal representation. Many clients have told us that the NHS conduct a much more thorough assessment when they have had legal representation present. The outcome of the assessment or any appeal will dictate whether someone is self funding or whether the NHS will pay for all the care required with no requirement for the individual to contribute any income or capital. It must be remembered that many people are in care because they could not cope at home but still do not qualify as there need is properly deemed to be Social Care. As the assessment system has bedded in following the last major revision in 2007 the intensity of debate and the knowledge required to mount any form of challenge to the outcome has increased dramatically.

Is the Power of Attorney given the power to mess with the ...

It depends what kind of power of attorney the person holds. There are financial power of attorneys, and medical powers. They are not usually in the same document. A financial power of attorney allows the attorney in fact to execute documents, sign checks, pay bills, negotiate settlements, sell real estate or personal property, on behalf of the incapacitated person. A medical power is for health decisions. There are many ways of limiting powers of attorney. There are both full powers of attorney and limited powers of attorney.You have to read the document to know the full scope of the powers. Insurance companies require that the written document be submitted by the attorney in fact prior to releasing information, making payments , etc. So your question “are there any loopholes” would make me conclude that the powers are specified in the document, you need a copy of the papers to know the extent of the powers appointed by the incapacitated person. “Messing with ” beneficiaries has nothing to do with it. It’s possible the best interests of the incapacitated person do not mesh with what the beneficiaries want. The attorney in fact has a fiduciary obligation to the incapacitated person, and doesn’t owe family members who disagree an explanation, much less succumb to pressuring by them or solicit their opinions on the best course of action. That’s just the way it works, like it or not. Most people execute a power of attorney and appoint an attorney in fact specifically to avoid the hassle and problems of having family members make those decisions. It is designed to exclude those family members, specifically, and to select/ appoint the person in charge. I hope this explanation helps you. If you are having trouble with an attorney-in -fact and think the appointee is not representing the incapacitated person properly, you need to see a lawyer. You can probably start by requesting a copy of the appointment papers to determine the scope of the powers permitted. Additionally, the sick person may have filled out a living will, which instructs hospital personnel, doctors, and others whether or not healthcare should be administered or withheld. It may be that the attorney in fact is simply following the wishes of the sick person. He/she may have written instructions that say “do not resuscitate, do not hydrate (administering water), do not put on life support, etc.” That is what the Terry Schiavo case was all about–she didn’t have those documents executed when she became brain-dead. The person that takes care of those decisions himself, while he is still healthy enough, is really doing his loved ones a great favor, and trying to protect them from having to make terrible decisions. Finally, you are not a “beneficiary” until the sick person dies, and leaves you property in his/her will.

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