Which would be best - the LA or a private solicitor to become my Mum's Deputy?

[Fielder]

Hi,

My 88 year old Mum's got quite advanced dementia and is about to come out of hospital after being very ill with a sepsis caused by a urinary tract infection. My 91 year old Dad has been my Mum's sole carer for over 5 years, but he can't take care of her at home anymore due to her needs having increased and his health having deteriorated. My Mum therefore needs to go into a nursing home. My Mum's just had the basic check list assessment which has triggered the need for the second assessment for NHS Continuing Healthcare (so the second assessment hasn't happened as yet). If my Mum doesn't get full or part NHS Continuing Healthcare funding, my Mum has savings so she will have to pay for her nursing home fees until her savings dwindle.

Neither my Dad or I have a power of attorney for my Mum and there's no one who is willing or able to become her Deputy...My Dad's just not up to all the paperwork and responsibility and I wouldn't be allowed to become her Deputy as I have serious healthcare needs myself and couldn't visit her on a regular basis and I don't live in the same area as my parents, which makes things very difficult...

So, the bottom line is that we'll either have to ask the Local Authority to become my Mum's Court of Protection Deputy or instruct a local solicitor privately tor them to become my Mum's Deputy. (A solicitor quite close to where my Dad lives is actually a Court of Protection Panel Deputy, so I guess he should know what he's doing.)

I would be grateful for any views and experiences as to which of the two options would be preferable. I appreciate that once either the LA or a local solicitor become my Mum's Court of Protection Deputy we wouldn't have any legal right to a say in what happens to her, e.g. what nursing home she goes into etc...But would, for instance, a local solicitor be more likely to involve us in any decision making regarding her welfare more than a LA would - or would the LA be more likely to involve us? Also, would a local solicitor be likely to charge more for their services out of my Mum's savings as Deputy than the LA would?

A big thank you in advance for any replies.

 

[Louise7]

My understanding that it's not really a case of the family deciding who is best to undertake deputyship duties. The local authority can be asked by the OPG if they wish to undertake deputy duties but may not wish to do so, particularly if the individual is self-funding rather than LA funded at the time. Decisions with regards to whether someone is suitable or not to be a deputy are made by the court, and presumably their costs will be considered/taken into account to ensure that they are reasonable.

With regards to being involved in decisions about care/welfare, deputyship for health & welfare is rarely given. Regardless of who has the financial deputyship the family should still be involved in any 'best interests' decisions with regards health & welfare.

 

[Fielder]

My understanding that it's not really a case of the family deciding who is best to undertake deputyship duties. The local authority can be asked by the OPG if they wish to undertake deputy duties but may not wish to do so, particularly if the individual is self-funding rather than LA funded at the time. Decisions with regards to whether someone is suitable or not to be a deputy are made by the court, and presumably their costs will be considered/taken into account to ensure that they are reasonable.

With regards to being involved in decisions about care/welfare, deputyship for health & welfare is rarely given. Regardless of who has the financial deputyship the family should still be involved in any 'best interests' decisions with regards health & welfare.

Hi Louise7,

Many thanks for your reply. It's reassuring that whoever becomes my Mum's Deputy would need to consult us as family re 'best interest' decisions regarding her welfare.

I did know that the OPG/COP would decide who should become my Mum's Deputy. However, the OPG/COP would need to be applied to by someone for 'the ball to get rolling' for a suitable Deputy to be appointed. When I spoke to the hospital social worker about my Mum's situation, she said that we could apply for a Deputyship ourselves (which is out of the question for the reasons I outlined above) and then she said it would be up to us to decide whether we ask the LA to apply to become Mum's Deputy or we ask a local solicitor to apply to be her Deputy instead. (Then, I understand, it would be up to the OPG/COP to decide whether to grant the application or appoint one of their approved 'Panel Deputies'.)

Who would 'get the ball rolling' if we don't 'get the ball rolling' by asking a solicitor or asking the LA to apply for Deputyship, even if in the end the OPG/COP decide that one of their 'Panel Deputies' would be more suitable?

I understand that to prevent hospital 'bed blocking' by patients who are ready to leave hospital, what can happen is the LA would place them in a nursing home, pay the nursing home fees, but be 'champing at the bit' to be repaid for this out of the patient's savings (when their savings are over £23,750 or whatever the exact figure is) so I guess it would be probably in the LA's interests to apply for a Deputyship.

 

[Louise7]

Whoever takes on deputyship would be bound to follow the same process, so not sure that there would be any difference in either the LA or a solicitor taking it on. With regards costs, solicitors and LA's will all have their different rates so maybe you could contact both the solicitor and the LA to ask what their fees would be and whether they would be willing to act as Deputy?

Not sure about the LA 'champing at the bit' to be repaid care home fees. Mum left hospital in May and the LA is paying the home fees. We've applied for a deferred payment until we can sell the house but there has been no sign of the agreement contract yet and so they don't seem to be in any hurry to get their money back!

 

[Fielder]

I've just read that Deputyship charges are capped - for both LAs and private solicitors. I will try to double check that though. I think I might email the local solicitor we have in mind with a few pertinent questions. I'm pleased to hear that you've not been hounded for your Mum's care home fees. I'll tell my Dad about that as it might help put his mind at rest.

 

[Louise7]

Well it could be that your Mum's LA may be a bit more competent than my Mum's. From reading various threads here it seems that there are wide variations in services received dependant on where you live. I think at the end of the day though, the LA can 'champ at the bit' all they like but if there's no deputyship in place then they'll have to wait for their payment. Hopefully you can put your Dad's mind at rest by letting him know that the LA's will be used to waiting for money in deputyship cases as it takes several months for the process to go through the courts.

 

[Fielder]

A very good point that you make about the length of time it takes to get a Deputyship. I understand though that when someone applies for a Deputyship - and they are waiting for it to be approved by the OPG/COP - they can apply for an urgent interim order if needed...Apparently, the order must be for a specific one-off decision that needs to be made without delay - The example of such a one-off decision that's given on the Government website is 'to get money from the person’s bank account to pay outstanding nursing home fees' https://www.gov.uk/emergency-court-of-protection. I asked the hospital social worker whether the LA would do that to get at my Mum's savings, but she said that she hadn't heard of that happening and so didn't think so. But I guess if they were to do that, that's actually fine (as long as it's after we've got a decision about the possibility of free NHS Continuing Healthcare for my Mum - she's in such a bad way, she might actually qualify for it). Thanks for your help.

 

[charlie10]

Presumably fees to the solicitor/LA deputy are payable by the self-funding pwd.....what happens when they fall below the self-funding financial threshold, are they then treated in the same way as CH fees?

And if someone who is very ill but not diagnosed with dementia and apparently has capacity is discharged from hospital to a CH, but refuses to pay cos he didn't want to be there, would he be sent home or would a Deputy be appointed. (refused to grant LPA). From looking at CH sites I saw that they want a commitment/plan for paying fees for at least 2 years and now I'm trying to see the implications for a person who is too unwell to live at home and is recalcitrant but has capacity.....sorry if that's very muddled....good reflection of my brain at the moment!

 

[tryingmybest]

I contested my sibling getting Deputyship as she had emotionally and financially been abusing my Mum for the 7 months she had lived there, before coming to live with me. In order to protect me, as it was such a contentious case (involving more than just the money side of things), the police, who were investigating the fraud in Mums various accounts, advised it best not for me to try and become Mums Deputy and the Judge agreed and made the decision to appoint the LA to be Mums Deputy. However after 2.5 years, they didnt want to do it anymore and resigned due to lack of time. The Judge then appointed a Solicitor. He is probably a lot more expensive than the LA was, I have no idea, and that information is not available to anybody. However, for me, it's worked in my favour, as he is a lot easier to deal with than the LA, from who it was quite difficult to get funds, whereas this new chap has been a lot more accomodating and helpful whenever I need to buy things for Mum. He also pays me a small but regular weekly allowance which helps pay my bills now I'm caring for Mum 24/7, as I gave up my job 4 years ago. He seems very fair but goodness knows what he is charging every time we converse/email. He visits Mum once a year to check all is ok, so proving that not being a regular visitor should not put anyone off applying.

 

[Banjomansmate]

If you are applying for CHC funding I think that in the first instance your Mum could well be ‘funded from hospital’ to get her out as quickly as possible, then assessed properly to see who will need to pay Care Home fees. Once that is decided and you don’t get CHC awarded, that is when you will have to start paying.

 

[Fielder]

If you are applying for CHC funding I think that in the first instance your Mum could well be ‘funded from hospital’ to get her out as quickly as possible, then assessed properly to see who will need to pay Care Home fees. Once that is decided and you don’t get CHC awarded, that is when you will have to start paying.

Thanks for that. Yes, the hospital social worker said that my Mum may be placed in a nursing home for 28 days while they assess her for CHC, which would be funded by the NHS. The nursing home would be of their choice - we would have no say in where they put her.

 

[Fielder]

I contested my sibling getting Deputyship as she had emotionally and financially been abusing my Mum for the 7 months she had lived there, before coming to live with me. In order to protect me, as it was such a contentious case (involving more than just the money side of things), the police, who were investigating the fraud in Mums various accounts, advised it best not for me to try and become Mums Deputy and the Judge agreed and made the decision to appoint the LA to be Mums Deputy. However after 2.5 years, they didnt want to do it anymore and resigned due to lack of time. The Judge then appointed a Solicitor. He is probably a lot more expensive than the LA was, I have no idea, and that information is not available to anybody. However, for me, it's worked in my favour, as he is a lot easier to deal with than the LA, from who it was quite difficult to get funds, whereas this new chap has been a lot more accomodating and helpful whenever I need to buy things for Mum. He also pays me a small but regular weekly allowance which helps pay my bills now I'm caring for Mum 24/7, as I gave up my job 4 years ago. He seems very fair but goodness knows what he is charging every time we converse/email. He visits Mum once a year to check all is ok, so proving that not being a regular visitor should not put anyone off applying.

Thanks very much for your reply, tryingmybest. My Dad and I were thinking that it might be better to ask for a local solicitor to apply for a Deputyship for my Mum - from the point of view of us having possibly easier access to them...so it's really helpful to know that you've been finding dealing with the non-LA solicitor better than dealing with the LA. (The little experience I've had so far in dealing with LA social services in my Mum's area is that you can't get hold of them to discuss anything. To speak to a social worker at the hospital about my Mum was a mini 'task and half' - It took two letters from me before they deigned to respond.)

 

[Fielder]

Presumably fees to the solicitor/LA deputy are payable by the self-funding pwd.....what happens when they fall below the self-funding financial threshold, are they then treated in the same way as CH fees?

Mmmm...who pays a professional Deputy when there are no savings left? - that's a very interesting question, charlie 10. I'm going to google and research it for future reference. I'll post up about it if/when I manage to find out.

 

[Fielder]

And if someone who is very ill but not diagnosed with dementia and apparently has capacity is discharged from hospital to a CH, but refuses to pay cos he didn't want to be there, would he be sent home or would a Deputy be appointed. (refused to grant LPA). From looking at CH sites I saw that they want a commitment/plan for paying fees for at least 2 years and now I'm trying to see the implications for a person who is too unwell to live at home and is recalcitrant but has capacity.....sorry if that's very muddled....good reflection of my brain at the moment!

I stand to be corrected on this, but I read somewhere that if a person has capacity they don't have to move into a care home or remain in a care home, even if it has been suggested or has already been organised and implemented by hospital social workers/social services following a care assessment. I read that you can only be forced into a care home or have to remain in a care home under exceptional circumstances, such as detention under the Mental Health Act 1986. I don't think Deputyships are granted unless a person can be deemed to have lost capacity. I wonder if the COP enquiries line 0300 456 4600 would advise you; I've never called them, but I've been told that they are usually helpful. Such a very difficult situation...I'll be interested to read what other forum members have to say about this.

 

[charlie10]

thanks for your reply @Fielder......such a very complicated subject.....seems that no sooner than you have one question answered than up pops another! Hope you manage to get your deputyship sorted and it takes the pressure off you and your dad

 

[tryingmybest]

Thanks very much for your reply, tryingmybest. My Dad and I were thinking that it might be better to ask for a local solicitor to apply for a Deputyship for my Mum - from the point of view of us having possibly easier access to them...so it's really helpful to know that you've been finding dealing with the non-LA solicitor better than dealing with the LA. (The little experience I've had so far in dealing with LA social services in my Mum's area is that you can't get hold of them to discuss anything. To speak to a social worker at the hospital about my Mum was a mini 'task and half' - It took two letters from me before they deigned to respond.)

Exactly. I could never get hold of the lady at the LA as she only worked part time and had young children so was always off on the school holidays and never at her desk!! Do make sure you choose a solicitor who is experienced in being a CoP Deputy however.

 

[nitram]

Do make sure you choose a solicitor who is experienced in being a CoP Deputy however.

It is possible to ask the COP to appoint a Panel Deputy
https://www.gov.uk/guidance/panel-deputies-list-of-court-approved-professionals

 

[good gosh]

I think the best people to be nominated as Deputies are those who need the authority to deliver the care directly themselves - without going on a paperchase of explanations and approvals through a third party deputy for every decision and expense.

If the LA are to manage the care, the LA are best placed to be the Deputy. The LA will need the authority to do what is needed as directly are possible; without running after a 3rd party Deputy to get approval for everything.

Similarly, If the family are to manage the care, a trusted family member would be the best as Deputy, to approve decisions quickly in accordance with medical and social advice.

 

[canary]

If the family are to manage the care, a trusted family member would be the best as Deputy, to approve decisions quickly in accordance with medical and social advice.

Yes, absolutely, but @Fielder has said that there is no-one in the family in a position to do it.
I held CoP deputyship for my mum, but if I couldnt do it, Im not sure who else would be in the best position. There seems to be pros and cons of both the LA and a private solicitor holding it.

 

[good gosh]

Yes, absolutely, but @Fielder has said that there is no-one in the family in a position to do it.
I held CoP deputyship for my mum, but if I couldnt do it, Im not sure who else would be in the best position. There seems to be pros and cons of both the LA and a private solicitor holding it.

I think, in a case where no-one is available, the CoP will decide who is best for the appointment - likely a solicitor registered with them for such work.