The Government’s Social Care Reforms & The Court Of Protection

The Prime Minister recently announced that the Government will be introducing reforms to the funding of social care, with an increase in National Insurance contributions across the board to boost the sector, and of course the NHS.

How could the social care reforms impact those who lack capacity?

The new funding regime will have implications for individuals who lack capacity and require varying levels of assistance, and in turn, we could see an increase in deputyship applications for those who do not have a Power of Attorney.

Social care is not confined to the elderly, although admittedly a large proportion of care costs provides for individuals in the latter stages of life. But many younger people in Britain need care for a variety of reasons. Some with physical disabilities need help with everyday tasks, whilst others suffer from mental health problems and require varying degrees of support, depending on the nature of their condition and the severity of any symptoms they suffer from.

How will care be funded?

All care is, of course, funded, and whilst the very poorest in our society do usually receive help, care is never “free”. Whilst local authorities might front the bill, the recipient of care is usually expected to repay the costs from their estate. That said, some individuals are eligible for Continuing Healthcare Funding, subject to assessment. This process is a minefield and there is a disparity in regional resources, meaning that two individuals in different areas of the UK are not always treated in the same way.

The Government is proposing a one size fits all approach, which will guarantee that no individual will have to pay more than £86,000 over their lifetime for care. This might seem a substantial sum to many, but the typical cost of a care home over a year can easily exceed £30,000 and if an individual lives for many years in a care facility, this will represent a significant saving, with the state picking up the remainder of the tab from the additional revenue raised through National Insurance contributions.

The legislation will provide that all individuals with less than £20,000 in assets – excluding the value of their home – will have their care fully funded if they live at home. However, the value of the equity in that person’s home (assuming they own it) will be included if they are moving into a care home permanently. The downside to this is that some people will have to sell their property when moving into a care home so that they can afford to meet the fees, but the upside is that those who are cared for in their own homes will not have a charge levied against their house to pay for that care. This will, in turn, benefit their beneficiaries who will inherit that property on the individual’s death.

Applying for funding

The process of applying for funding will rest with the individual in question, and they must approach the adult social care team at their local authority to seek funding.

In the case of individuals who lack capacity, this duty will fall to their attorneys or deputies. In some circumstances, a relative or friend of a person without capacity can become that person’s “appointee” without having to go to the Court of Protection, and this limited power enables them to make applications to a local authority for funding. But it is limited only to that process and what an appointee cannot do is sell assets belonging to the protected party without a Power of Attorney or deputyship order authorising them to do so.

This perhaps emphasises the importance of having a Power of Attorney, because, for those who do not, their relatives are going to be required to make applications to the Court of Protection for deputyship orders enabling them to deal with that individual’s finances. Those applications can take time, and avoiding this delay can sometimes be essential for the protected party.