Legal and financial matters for the elderly

When making the very difficult decision on care and whether to give up your own home it is important to consider the legal and financial implications and to take good advice from a specialist adviser in matters such as:

• Lasting Powers of Attorney
• Court of Protection issues
• Wills and tax planning
• The sale of your property
• Financial planning tailored to your own personal needs

In October 2007, the law changed, bringing the Mental Capacity Act 2005 into force. Existing Enduring Powers of Attorney (see below) will remain valid but new Powers must be Lasting Powers of Attorney.

A Lasting Power of Attorney is a legal document that gives someone chosen by you (usually a friend, relative or professional person) the right to make decisions on your behalf about things like your personal welfare and healthcare, as well as about your money and property. You may appoint more than one person as your attorney, in which case you will have to decide how the attorneys will work together.

You do not have to wait for your ability to make decisions about yourself to decline before choosing an attorney and you have the right to stop the Lasting Power of Attorney at any time (so long as you are able to make the decision for yourself). Your attorneys are also free to change their mind at any time about acting in this capacity, in which case you would need to appoint a new person and make a new Lasting Power of Attorney. A Lasting Power of Attorney has to be registered with the Office of the Public Guardian to ensure that it is legal and has been set up properly.

Remember, a Lasting Power of Attorney is a legal document that gives someone else the right to act on your behalf if you are not able to make some or all of the decisions to do with your life - you should therefore be sure that the people you choose to be your attorney know you well and that you trust them to do what is best for you.

If you lose your mental capacity and have not signed a Lasting Power of Attorney, then someone must apply to the Court of Protection to be appointed 'Deputy' (formerly known as a 'Receiver'). In this case, the Court decides who will manage your affairs, so the person appointed may not necessarily be someone you know or the person you would want to deal with your financial arrangements.

As of October 2007, there have also been changes to the Court of Protection and its procedures. Receivers are now known as Deputies with specified powers to deal with someone's financial affairs, which can include personal and welfare decisions.

This is an important time of change. You should consider taking advice to review your financial position and that your legal affairs are in order. The two frequently go hand in hand.

As regards financial planning, you may wish to get advice about making the most of your funds to finance care home fees, and to look at any tax planning options open to you. You should also consider reviewing your will, or making one, if you have not already done so.

About the Mental Capacity Act 2005

The Mental Capacity Act 2005 came into force in 2007 for people over the age of 16 years old and applies to England and Wales. It is designed to protect people who may lack the mental capacity to make their own decisions about their care and treatment.

Adults with Incapacity (Scotland) Act 2000

This act provides a legal framework for making decisions on behalf of people who lack he mental capacity to make the decision themselves.

This acts protects the welfare, property and finances of some adults (over the age of 16 years old) This includes adults who have a mental health concern or a physical disability which means they cannot communicate and are unable to make/communicate/understand or remember decisions.

Financial Support

As an older person or a carer of someone who is older, you may be entitled to a number of benefits as well as financial assistance that may make your life a bit easier. You might like to order a free copy of our brochure entitled, 'Your Health Counts', which gives more detailed information about your financial entitlements. However, we have given a broad overview below.

Organisations such as Age UK can give you more information about benefit entitlements. The Gov website at www.gov.uk is also an invaluable source of information. Similarly, your local Citizens' Advice Bureau should be able to talk you through the financial support available.

At the time of writing (December 2023) we are not able to predict changes to the availability of services, benefits or entitlements in the next 12 month. We strongly recommend that you double check any information given to find out what is the current situation.

Benefits

If you have a disability, you may be able to claim Personal Independence Payment (if you are over 16 years and under 65) or Attendance Allowance (if you are 65 or over). You may also be entitled to means-tested benefits such as Pension Credit, Housing Benefit and Council Tax Benefit; and also, a Social Fund Community Care Grant (if you are receiving Pension Credit).

Disabled Facilities Equipment

A wide range of equipment, aids and adaptations are available to help you remain in your own home - these might include, for example, a bath seat, special chairs, raised toilet seats or adapted doorways to accommodate a wheelchair. Some equipment may be provided free of charge through your local council or the NHS and the British Red Cross offers a loan service for disability equipment.

Free products and services

As an older person, you may be able to receive winter fuel payments, free bus passes, eye tests and gas safety inspections, for example.

There is also some help and support you can get for free that's available to everyone. It's not means-tested and it does not matter what your income is.

This free care includes some equipment and home adaptations, benefits, help after coming home from hospital, NHS continuing healthcare and nursing in a care home (NHS-funded nursing care).

Disabled Facilities Grant

You may be entitled to a Disabled Facilities Grant from your local council towards the cost of housing repairs or to adapt your home to meet your care and/or mobility requirements.

This grant wont effect any benefits you may get.

Intermediate Care

Intermediate care is a type of short-term rehabilitation and recovery service. This should be provided free of charge to help you get back into living at home after a period of time spent in hospital or to help you avoid going into hospital altogether.