Lasting Power of Attorney is a legal document enabling a nominated person to make decisions on an individual’s behalf if they lack the mental capacity to do so themselves.
A question we are regularly asked at Compass CHC is whether or not Lasting Power of Attorney (LPA) is necessary when dealing with the NHS. It’s important to note from the start that, contrary to popular opinion, being next of kin does not legally entitle you to make health or financial decisions on behalf of your relative. In many instances, in order to represent your loved one you will need a Lasting Power of Attorney in place. We advise clients to discuss LPA with their family and loved ones as early as possible in order to make an informed decision. An LPA is only valid if the individual has the mental capacity to set it up and hasn’t been put under any pressure to create it. Once in place this will ensure that financial and health decisions are made by an individual your relative trusts rather than an external team of professionals having to make decisions on what they believe will be in the patient’s “best interests”.
There are several reasons individuals may lose mental capacity and need their LPA to act on their behalf with the most common conditions being: Alzheimer’s and other forms of dementia, stroke, cancer, coma, severe mental health problems, brain injury or alcohol and drug misuse. It is important to remember that you can only set up a Lasting Power of Attorney when you have mental capacity. (If mental capacity has been lost before putting Power of Attorney in place, read our next blog)
Most people choose a family member or close friend to be their attorney; you can choose anyone you want as long as they are over 18, but it is important to appoint people who know you well and who you trust to make important decisions for you. It’s worth noting that if you are appointing a Property and Finance LPA (more details below); the person you choose cannot be bankrupt.
How does Lasting Power of Attorney help when applying for NHS Continuing Healthcare funding?
When applying for NHS continuing healthcare funding to help cover care costs or care home fees, the NHS is very particular about who acts on behalf of a patient. However, if you hold Power of Attorney then the Clinical Commissioning Groups (CCGs) have little reason to deny you the right to act on behalf of your loved one.
The Compass Continuing Health care team have encountered many instances where the NHS has refused to engage with a patient’s next of kin and have been obstructive due to the correct Power of Attorney not being in place.
It is important to note that there are two types of Lasting Power of Attorney (LPA):
- Health and Welfare: this gives an Attorney the power to decide on a person’s daily care routine and health needs, for example whether or not they should reside in a care home, and what medical treatment should be provided. It also allows the attorney to apply for the individual’s medical records to be disclosed when required.
- It can only be used when individuals are unable to make their own decisions.
- Property and Finance: this means that the Attorney has the authority to act in all financial matters relating to the patient, for example the payment of bills, selling of property and the collection of a pension or benefits.
- It can be used as soon as it’s registered, with an individual’s permission.
A Health and Welfare LPA is the most useful when pursuing a claim for NHS continuing healthcare funding, as most NHS-related establishments will attempt to insist on it before liaising with someone on behalf of a patient. They can refuse to disclose medical records relating to an individual if the family are not in receipt of a Health and Welfare LPA.
However, at Compass CHC, we maintain that a Property and Finance LPA is also perfectly adequate in this situation, as the matter of pursuing NHS continuing healthcare funding to cover care costs fits within the remit of Property and Finance; a person may have to sell their property and deplete their own finances to pay for care otherwise.
The NHS finding fault with the type of LPA unfortunately demonstrates some of the unhelpful delaying practices adopted by the National Health Service when dealing with continuing healthcare funding applications and flies in the face of the idea set out in the National Framework for NHS continuing healthcare that the process should be open, transparent and consistent.
Can Compass help with applying for a Power of Attorney?
An LPA is a powerful legal document, and in some cases it may be a good idea to seek advice from a legal adviser however it is perfectly possible to complete the process on your own and there is a wealth of easy to read information online to assist you through the application.
To designate an LPA you will need to complete a form (there are separate forms for the two different types of LPA) and send it to the Office of the Public Guardian. We find the Gov.uk website on creating and registering Lasting Power of Attorneys to be particularly helpful.
Our advisers are experts in healthcare funding and in managing care home costs. They therefore often provide guidance on the process of applying for an LPA and, more specifically, how an LPA works within the process of applying for NHS continuing healthcare funding.
For more information, call the Compass Continuing Healthcare team on 0121 227 8940.
Author: Tim Davies LLB