Gibson Kerr Solicitors
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Caring for Elderly Parents
For the carer, it can be emotionally-draining, stressful, and ultimately traumatic, especially if their parent or elderly relative becomes incapable through dementia or other age-related conditions. As if that wasn't enough to cope with, there is the bureaucratic nightmare of dealing with banks, pensions, insurance companies, tax offices, social workers, medical professionals, council finance departments and care homes.
Many people are simply not prepared for navigating their way through the complex jungle of rules and procedures on top of the anguish involved.
Scott Rasmusen, who specialises in powers of attorney, executries and wills for his Edinburgh-based law firm Gibson Kerr, says one of the first steps is to set up a power of attorney document . . . in time.
He said: "Power of attorney has to be given by the individual, so it has to be done while they are capable of expressing their wishes, agreeing to the document and signing it. It falls under the Adults with Mental Incapacity Act of 2000, but many people don't realise that by the time the elderly person has significant incapacity, it's too late. As with many legal issues, you have to look ahead and not wait until the parent or relative is no longer capable."
It's also vital that the power is "continuing" and a "substitute" is named, because otherwise, if the first person named dies unexpectedly – possibly years later, the elderly person still has to be capable to nominate a new "attorney".
A P of A can cost around £400. It is drawn up by a solicitor but is not valid until it has been approved and a formal document issued by the Office of the Public Guardian.
Scott explains: "Most people start off by arranging power of attorney in order to protect an older person's finances, but usually along with that comes a welfare section covering medical treatment and care, which becomes increasingly important as time goes on.
"It's a good idea when the formal document arrives, to have the solicitor issue one or two certified copies, signed on each page. That means you can keep the original in a safe place and send the copies to all the different agencies you will have to deal with. They certainly won't accept you taking over someone's finances or accounts just because you are the closest relative. They need to see the power of attorney."
A range of tasks fall to the "attorney", but toughest of all is arranging residential or nursing care when the elderly person can no longer live independently.
"All sorts of things come into play . . . your own assessment of the person's ability, a social work assessment, medical assessment, what sort of accommodation or care that person needs and which home or homes will be able to provide it. But it's important to remember that just because you live in Edinburgh and your relative may be moving to a care home near you, the local authority you have to deal with for assessment and at least part of the funding, is the one governing the area in which they currently live," says Scott.
"Every local authority produces its own advisory literature and there may be differences in the way they interpret or explain the rules. Some can be quite ambiguous and if you're not sure about anything, consulting a solicitor is a good idea. There are also some very searching and binding declarations which have to be made and these have major repercussions.
"For example people confuse the inheritance tax time limit of seven years (after which a financial gift to a relative can no longer be included for inheritance tax) with council's care-funding rules – on which there is no time limit. The council is looking for evidence that, no matter how long ago, money was moved with a view to avoiding paying care home costs in the future. If that's discovered, their funding can be withdrawn."
Because of heavy case loads among other things, some councils can cut corners causing problems for carers.
"It's been known for clients to sign forms where the council has left blanks to be filled in later. If that blank is a sum of money, perhaps the result of an assessment, it's equivalent to signing a blank cheque, so don't sign," advises Scott.
"It's also explicit in the regulations that an assessment of the person's needs should be kept entirely separate from financial funding arrangements and ideally they would be done by different departments. In reality, it's often the same social worker who will do both simultaneously and we would call that an obvious conflict of interest, especially in these cost-cutting times. It's quite possible that the decision could be influenced by cost rather than best welfare because personal care at home is usually cheapest, personal care in a residential home costs the council £156 a week and care in a nursing home costs another £71 a week on top. If you don't agree with the assessment, having the correctly-worded power of attorney is important, as is bringing in another assessment from a professional. Councils don't set out to short change anyone but they are under enormous pressure of work."
Signing care home documentation also requires the carer or "attorney" to be on-the-ball.
"I have seen cases where the clients have signed up to be legally responsible for elderly relatives' fees for say, three years. . . without getting legal advice first. The annual cost of residence in an Edinburgh care home can be as much as £40,000! You have to be very sure that there's £120,000 in the pot to cover it!
"If the individual has over £22,750, they will pay all their costs except personal care; under £14,000 and the council will pay (although at a lower rate); and in between there's a sliding scale. But check that the home will accept the reduction between self-funding fees and the council rate when the person's money runs out . . . some may not!"