THE HOME OF THE PROFESSIONAL ADVISER Care and Incapacity For financial advisers only

By attending this session advisers should be able to: Understand the advice issues when dealing with the incapacitated Recognise the different types of power of attorney Establish when and how The Court of Protection become involved Explain the principles of the Mental Capacity Act 2005 (Not Scotland or NI); The Care Act 2014 (England only); and The Mental Health Act 1983 (1984 in Scotland) Learning objectives

What is and when does incapacity occur? Mental Capacity Act 2005 The funding issues Types of power of attorney The Care Act 2014 Agenda

What is and when does incapacity occur? Mental Capacity Act 2005 The funding issues Types of power of attorney The Care Act 2014 Agenda

Incapacity can occur at any time!

Not many clients do this!

But how many do this?

Raise the issue with clients May not want to think about it…BUT Ramifications if something happens?? Powers of attorney must be put in place! Points for advisers

A stroke or brain injury A mental health condition Dementia Learning disability Confusion, drowsiness or unconsciousness because of illness or treatment for it Substance or alcohol misuse. What causes a lack of mental capacity?

Either can occur at any age! Today we are considering the older client with dementia and care needs But incapacity not just about dementia – strokes, other illnesses? Physical and mental incapacity

The dementia numbers 1 Department of Health report “Dementia A state of the nation report on dementia care and support in England” November 2013 Around 670,000 people in England have dementia - set to double in the next 30 years. 1 Dementia costs £19 billion a year, and is going to increase massively 1

What is and when does incapacity occur? Mental Capacity Act 2005 The funding issues Types of power of attorney The Care Act 2014 Agenda

……ensure those who lack capacity can make as many decisions for themselves as possible and … any decision made on their behalf is made in their “best interests.” Mental Capacity Act 2005

Presumption of capacity Individuals should be supported to make their own decisions Individual’s decisions should be respected Everything done should be in the best interests of the person Least restrictive option 5 principles of the MCA 2005

It is “capacity” to understand - NOT wisdom Capacity assessment is “decision specific” not generally “capable” or “incapable” Not a constant – “good” days and “bad” days No specific test to determine capacity When do you have “capacity?”

Capacity definition? “… a person lacks capacity …if at the time a decision is needed they are unable to make one …because of, an impairment of, or disturbance in the functioning of the mind or brain” 1

What is and when does incapacity occur? Mental Capacity Act 2005 The funding issues Types of power of attorney The Care Act 2014 Agenda

Who should pay for care if you have dementia? The individual? The NHS? The Local Authority?

It all depends!

Health Care or Social Care? HEALTH CARE Provided or funded by NHS Registered nurse –Hospital, care home, own home Respite care Palliative care Rehabilitation care SOCIAL CARE Non medical Local authority social services Home help, meals on wheels, respite care…. Equipment e.g. zimmer frames If in care home – will be a charge If intermediate care – free If in own home – eligibility requirements

NHS Continuing Health Care (Free!) How do you meet the eligibility criteria? Primary need for care must relate to “health”

N N N N N N N N N N N N N N N N N N N N N N L L L L L L L L L L L L L L L L L L L L L L M M M M M M M M M M M M M M M M M M M M M M H H H H H H H H H H H H H H H H H H H H H H S S S S S S S S S S S S S S P P P P P P P P Behaviour Cognition Psychological & Emotional Needs Communication Mobility Nutrition – Food & Drink Continence Skin & Tissue Viability Breathing Drug Therapies & Medication: Symptom Control Altered States of Consciousness Decision Support Tool Other significant care needs

Self funding care for dementia Many people that have dementia or lack mental capacity are “self-funders” The biggest area of care is informal care provided by family/friends Cost to the state if it had to be paid for?

BUT……….

Free dementia care? The “secret” law that means dementia care can be free The Sunday Times 11 th May 2014

Section 117 “aftercare services” Care must be provided free 2012/13 – 9,000 over 65’s “sectioned” 1 Not just for “violent” cases Local Authorities are reviewing! COST! Mental Health Act Source Health and Social Care Information Centre

Its about “advice”, so advisers must consider… Assessing whether self or state funded BEFORE considering product NHS Continuing Health Care The Mental Health Act 1983 – S117 After care services

What is and when does incapacity occur? Mental Capacity Act 2005 The funding issues Types of power of attorney The Care Act 2014 Agenda

Advisory process Acting on behalf of the client - working with the family Even with power of attorney - person who requires care is the client!

Advisory process Involving family? Power of Attorney required If no power of attorney – Court of Protection Conflicts of interest? Maximise income for elderly person and ensure good care for life OR Maximise the value of estate for inheritance

Power of attorney (POA) Initially an ‘Ordinary POA’ which was: –General or specific to one or more areas –POA’s can act jointly or independently –POA is revoked on loss of mental capacity As a result this led to the EPA Act 1985 which: –introduced the Enduring Power of Attorney then: –superseded by Mental Capacity Act 2005 and LPA’s

Enduring Powers of Attorney (EPA) Power to continue to act in the event of loss of capacity Must be registered when donor starts to lose capacity Can’t write new EPAs, but those signed before October 2007 are still valid

EPA Can use before loss of capacity but: –can be restricted so that power does not come into effect until registered Powers can be general or restricted and attorneys can be single or joint Does not include personal welfare

Lasting powers of attorney – two types Property and affairsHealth and welfare

EPA/LPA differences FeatureEPALPA Cover property and financial affairsYES Cover personal welfareNOYES Must use prescribed statutory formYES Can be used prior to registration (subject any restriction)YESNO Can be used whilst attorney has capacity *PWLPA only when capacity lost YESYES/NO* Attorneys have a legal duty to have regard to Code of Practice N/AYES More than one attorney allowedYES Attorneys must sign to say have read documentation and understand duties NOYES Can give limited or general powers to attorneysYES

Encourage clients to execute powers of attorney! Dealing with Court of Protection takes time - and costs client money! You cannot accept instructions without one or other Families cannot make decisions without power of attorney or deputyship Points for advisers

Main state benefits for elderly care? Attendance allowance – for 65 and over –Lower rate: £54.45 per week –Higher rate: £81.30 per week Form is 32 pages long! NHS Funded nursing care (RNCC) –Flat rate: £ per week Paid to care home by NHS Department of Work and Pensions 2014/15 Rates

What is and when does incapacity occur? Mental Capacity Act 2005 The funding issues Types of power of attorney The Care Act 2014 Agenda

Care Act 2014 Introduces the “wellbeing principle” Focus on the needs and goals of the person concerned What if lack of capacity? Cross reference back to MCA 2005:- –presumption of capacity –supported to make their own decisions Local authority has a duty to appoint an Independent Advocate for those who:- –Have substantial difficulty in being involved –And where no one appropriate to support them

LTC – All about advice, advice, advice! Ensure all state entitlements are being received Assess whether self or state funded BEFORE considering product Local Authority correct interpretation? NHS? MHA 1983?

By attending this session advisers should be able to: Understand the advice issues when dealing with the incapacitated Recognise the different types of power of attorney Establish when and how The Court of Protection become involved Explain the principles of the Mental Capacity Act 2005 (Not Scotland or NI); The Care Act 2014 (England only); and The Mental Health Act 1983 (1984 in Scotland) Learning objectives

Thank you Partnership is a trading style of the Partnership group of Companies, which includes; Partnership Life Assurance Company Limited (registered in England and Wales No ), and Partnership Home Loans Limited (registered in England and Wales No ). Partnership Life Assurance Company Limited is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. Partnership Home Loans Limited is authorised and regulated by the Financial Conduct Authority. The registered office for both companies is 5 th Floor, 110 Bishopsgate, London, EC2N 4AY. LTC V1