Court of Protection some queries

[Selinacroft]

Have been advised by Social Services it is a good idea to get Court of Protection "to protect myself" rather than using third party access to accounts. I suppose I knew this was coming but some questions please.

Can the authorities force you to put your PWD into residential care at any stage? - if there are no safe guarding concerns.
Do you need to declare all initial assets to a complete stranger even if you are not approaching the financial threshold of £23,250.
I know this has been discussed elsewhere but wondering if it worth consulting a specialist solicitor to see how much I can pay self for provision of full time care (so as not to break the rules)
If I were to pay myself over the £116. 00 per week would I loose my entitlement to Carers Allowance or not? If I had to live on so litt , I would realistically have to go back to work full time and hand dad over which is not what he nor I would want, nor rest of family.
For those who have been trhough the process, what is the best way to do it?
Sorry if this is has been covered a million times before.

 

[Jessbow]

You don't ever have to disclose. If you don't ( Or are not prepared to) You wont get any financial help.I never disclosed because I thought Mum had enough funds and would never get assistance with fees, as it was she was CHC funded in the end.

I'm not up on carers allowance- is it income dependant, or hou
rs spent caring? It looks like earnings of more than £116 p/w means you cannot claim it

 

[Selinacroft]

Hi Jessbow- thanks-I'm not after financial help (apart from CHC which is never granted) and won't need it for at least another 3 years , it's highly unlikely to be a problem as Dad is 91 with extremely poor health.
I suppose the main question is - Do I have to legally have Deputyship through court of protection once he is deemed not to have capacity . Given that he has already expressed his wishes fo rme to deal with his affairs giving me third party access to bank accounts- can I continue paying bills with that?
Would social services feel inclined to apply for CT of protection themselves if I chose not to (to ensure Dad was not being financially abused?)
Most of the bills are all in my name these days- would that be a problem regarding court of protection?
I know the limit on Carers Allowance and teh allowable earnings so the question I suppose is how much you can pay yourself (in order that you don't have to work and agreed to care for dad when he had full capacity so gave up full time job)

 

[canary]

Is going into residential care on the cards? Do you have third party access to all his assets, or are there some savings accounts, ISAs and a house that you would not be able deal with?

Even if there are no problems with any of these things, there is still the problem that if a bank gets wind of the fact that the main account holder has dementia they could well freeze it. Do you know what SS think you should be protecting yourself from? It may be the fact that you are using a third party mandate to pay yourself for looking after him that is making SS twitchy - even though it was all agreed before he lost capacity.

 

[Pete R]

Have been advised by Social Services it is a good idea to get Court of Protection "to protect myself" rather than using third party access to accounts. I suppose I knew this was coming but some questions please.

I think on another thread a few months back you mentioned how you were accessing funds. If your Dad lacks capacity then CoP is the only route.

Can the authorities force you to put your PWD into residential care at any stage? - if there are no safe guarding concerns.

With no concerns then NO they probably would not have any involvement. There is no Deputyship for Health & Welfare so if they did get involved in the future then they could force options you would not want but everything would be decided in "best interests" and may have to be decided by the Courts.

Do you need to declare all initial assets to a complete stranger even if you are not approaching the financial threshold of £23,250.

When completing the CoP forms for Deputyship then YES you have to declare everything.

I know this has been discussed elsewhere but wondering if it worth consulting a specialist solicitor to see how much I can pay self for provision of full time care (so as not to break the rules)
If I were to pay myself over the £116. 00 per week would I loose my entitlement to Carers Allowance or not?

You can pay yourself to be a carer but you would have to apply to the CoP for permission when applying for Deputyship.

I would think you would lose your CA.

 

[Kevinl]

Can the authorities force you to put your PWD into residential care at any stage? - if there are no safe guarding concerns. Why would they want to other than a safeguarding issue? If there was any chance they might have to fund the care they'd do all they could to keep him out of a home.
Do you need to declare all initial assets to a complete stranger even if you are not approaching the financial threshold of £23,250. If you wan to the LA to assist with the funding then they would (quite reasonably) want to do a financial assessment but of his assets only, not yours. If the LA aren't going to be involved then you can decline the financial assessment.
I know this has been discussed elsewhere but wondering if it worth consulting a specialist solicitor to see how much I can pay self for provision of full time care (so as not to break the rules)
If I were to pay myself over the £116. 00 per week would I loose my entitlement to Carers Allowance or not? There is a thing called a "Family Care Payment" (some Gratatious Family Payment) there's a link below to the CoP website where it is explained. It has been established in court that a CoP deputy can take payment from a relative but it never seems to have been tested if someone without a deputyship can do it, if you consult a lawyer I would ask them the question. If you become a deputy then it shouldn't be a problem. Carers allowance is only conditional on earnings, unearned incomes don't count so an FCP wouldn't affect your carers allowance I know someone retired early (below state pension age), took her private pension and rented her house out to care her mother, she still gets carers allowance as these aren't classed as earnings.
K
https://www.gov.uk/government/publi...payments/pn2-family-care-payments-web-version
https://www.gov.uk/government/publications/public-guardian-practice-note-family-care-payments

 

[Selinacroft]

Thank you for those very helpful replies.
I can't see residential care being on the cards. I have cared for dad for 10 years and will do my bit until the end. He is 91 and in very poor health so I would think having funds for 2- 3 year would be more than adequate although I do totally appreciate that timescale is far from predictable.
I suspect social services don't like me paying myself and also trying to give me best advice. They also mentioned brother so perhaps they thought he would object but he knows what I do and is more than happy - (as he doesn't have to do a thing carewise and doesn't need the money) I have nothing to hide, dad completely agreed to me looking after things and giving up my full time job a few years ago. I have records and receipts in detail for the last couple of years. If anything, reading other posts I have been underpaying myself since day 1.
It would be tricky if assets were frozen so from that point of view it would give me certainty. I have access to most funds but not the house and a couple of small savings and investements.
A hypothetical question really but if you did not know all the financial details how can you provide them? Would dad need to know? He would go mental at the thought of anyone else having control over things.
I've had other conflicting advice that you don't need to give full financial details if you are not approaching the threshold for funding any time soon. Could anyone clarify Please?.

 

[Pete R]

I suppose the main question is - Do I have to legally have Deputyship through court of protection once he is deemed not to have capacity . Given that he has already expressed his wishes fo rme to deal with his affairs giving me third party access to bank accounts- can I continue paying bills with that?

Legally NO you cannot. Giving 3rd party access is very different from giving someone legal authority under an LPA or being granted Deputyship by CoP to manage all their affairs.

Would social services feel inclined to apply for CT of protection themselves if I chose not to (to ensure Dad was not being financially abused?)

If they found out you did not have lawful authority to access his money they may well apply for Deputyship themselves. Maybe the advise they gave you to apply yourself is a gentle hint.

Most of the bills are all in my name these days- would that be a problem regarding court of protection? )

No. You would have to account for your Dad'd money used to pay the bills but that is fairly straightforward.

I know the limit on Carers Allowance and teh allowable earnings so the question I suppose is how much you can pay yourself (in order that you don't have to work and agreed to care for dad when he had full capacity so gave up full time job)

Unfortunately these agreements have no bearing in law as they are so open to misuse (which I am not at all suggesting with you whatsoever)That is why there are LPA's and CoP.

A recent case allowed a payment of £15000/year but the donor did have assets. That is why you have to apply to the court so they can see if any amount is first of all justified and then if it is affordable. Just to add that any payment may well be free from tax and NI.

Work out how much it would cost to pay someone else to provide the care and take off 20% and then see how long any assets would last. That is roughly what CoP would do.

 

[Selinacroft]

There is a thing called a "Family Care Payment" (some Gratatious Family Payment) there's a link below to the CoP website where it is explained. It has been established in court that a CoP deputy can take payment from a relative but it never seems to have been tested if someone without a deputyship can do it, if you consult a lawyer I would ask them the question. If you become a deputy then it shouldn't be a problem.

Thank you very much Kevini. That's very helpful but I need to read up on it some more as I thought having court of protection was the same thing as deputyship, obviously not. Yes it does sound as though a good solicitor who knows what is what may be worth seeing . I guess I need to find one who specialises in care /probate type cases.

 

[Selinacroft]

Work out how much it would cost to pay someone else to provide the care and take off 20% and then see how long any assets would last. That is roughly what CoP would do.

Thank you Peter- that is most helpful

 

[Pete R]

Work out how much it would cost to pay someone else to provide the care and take off 20% and then see how long any assets would last. That is roughly what CoP would do.

Thank you Peter- that is most helpful.

Just to make it clear that piece of advice only stands when you apply to CoP for Deputyship. It does not apply if you arealready paying yourself from your Dad's funds. It may be in the future the CoP disagree and want the money paying back.

If your Dad lacks capacity you cannot legally access his bank accounts under the 3rd party agreement you had. I would imagine that having your Dad's account frozen would be more than just "trickey" for you. You may never get access back.

You have to apply to CoP for Deputyship. If you do not have Deputyship you cannot apply to the CoP for permission to pay yourself.

 

[Selinacroft]

Thanks- message received and understood.

 

[Selinacroft]

Another question please- if there is no family dispute over proposals to ct of protection, is there any advantage in employing a solicitor? If so what are the advantages (assuming family members are competant at filling in official forms) .

 

[TheBearsMummy]

If your dad still has capacity to understand and sign LPA this is a much simpler and cheaper way for you to have control of his finances. Forgive me if this has already been looked into and is no longer an option

 

[canary]

Another question please- if there is no family dispute over proposals to ct of protection, is there any advantage in employing a solicitor? If so what are the advantages (assuming family members are competant at filling in official forms) .

If there is unlikely to be a family dispute then the only advantage of using a solicitor is that someone else can fill in the forms. They are a bit tricky, but I did them myself and so have several others on here. If there are any problems you could either post your query on here or phone the CoP - they are very helpful, although sometimes there is a queue.
Solicitors charge a lot of money for doing this, so if you feel you can do it yourself then I would go for it.

 

[Selinacroft]

Thanks Canary- I can't see how a solicitor could help fill in the forms - they would have to ask me all the questions in the first place. I've spent years filling in forms, so a bit tedious but probably the way forward.

 

[DeMartin]

I was in a panic, mum declared without capacity by the adult mental health department of her local hospital, self funding, urgent need for bed.

Emergency placement found (all self funded/paid by me).
Now Mum “settled “ closer to me.

So to mum’s solicitor. Instructed them to proceed with deputyship. Having had “tales” from mum of her GP, and living a long way from her, I sill feel that getting someone else to chase paperwork was good for me.

It’s almost sorted, court agreement, just need stamped papers.

Then the trouble with P.O., BT, etc begins.

I couldn’t find a “dummies guide “ to sorting this all out.

Could I have got POA, probably not then, Mum was very lucid on name of estate agent to deal with flat, but....

 

[Selinacroft]

Hi DeMartin
Did you give the date that your mum was seen by Community Mental Health as the date of incapacity? It is hard to pinpoint, Dad had a dementia diagnosis roughly a couple of years ago but his capacity has been up and down like a yoyo, just bad in the evening for ages but recently extending into the day on most days.
How long has the process taken you so far Demartin? I'm still pondering over solicitors. It would be nice if they did a sort of checking service - a bit like they do at the PO for passport apps, so you can do the donkeywork but get an expert to check you've done nothing stupid. Do you have to attend while they review the case like a court hearing or do they just write to you with decision?

 

[DeMartin]

Sorry third draft of reply, mum diagnosed severe vascular dementia about March 10. Absolutely no way mum would POA, refused care 4xday.
Instructed solicitor March 13. Confess I was panicked.
Still they sorted doctors paperwork, (and I had no confidence in. GP paperwork,) I decided both my SIL and I should named deputies ( the threat of the number 92 bus)
I think it was worth it, no hassle for me, just papers to sign, and mum’s funds pay for it.
My family have a 4 generation history of legal problems regarding wills!

 

[Kevinl]

Thanks Canary- I can't see how a solicitor could help fill in the forms - they would have to ask me all the questions in the first place. I've spent years filling in forms, so a bit tedious but probably the way forward.

The easiest thing would be to go to the link below, download the application forms and see how far you get filling them in, you can always ask on here if you have a problem.
If you don't feel confident enough then at least you'll know what the solicitor will ask and any information they'll need to be provided with so you can go armed with any relevant paperwork, documentation, birth certificates or whatever they'll ask you for.
K

https://www.gov.uk/become-deputy/apply-deputy