Mental Capacity

1.4 million people attend A&E in England and Wales each year with a recent head injury. Up to 700,000 of them will be children under the age of 15 (source: NICE June 2107).

“As a society we have greater awareness of mental disability that we may have from birth or that we may acquire through injury at some stage in our lives. And while more widespread understanding is good, there remain many challenges for those with brain injuries and those with intellectually disability and those who lack mental capacity.”
Hilary Cragg, Partner

What areas do you cover?

We have the people, experience and skills to provide both support and help in areas such as making and amending a Will and arranging Lasting Power of Attorney for both Financial Affairs and Health & Welfare. When it comes to care we can attend best interest and discharge meetings and if necessary we can deal with disputes about funding, including Local Authority assessment and NHS Continuing Care funding.   We also oversee applications to the Court of Protection for statutory Wills and for other financial and health decisions.

How can you help?

At Nash & Co we recognise that these conditions don’t just affect the individual, but also their friends, colleagues and family and we know that as a person who looks after someone, it’s not unusual to find yourself in a meeting or a situation where you feel that you want someone on your side to explain what is happening. This is where we can help.

Can I find out more?

We may have come a long way over the years in how we recognise and treat people with brain injury and disability, but even with the best intentions there are times when misunderstandings and plain bureaucracy can get in the way; if you are experiencing something like this or need to speak to someone, please contact Hilary Cragg. Her email address is [email protected] or you can call her on 01752 827047.

NHS Continuing Care funding (Click Here for FAQs)
What is NHS Continuing Care Funding?

This funding is available from the NHS when someone has a primary healthcare need as opposed to a primary social care need or alternatively is in the final stages of a terminal illness and is rapidly declining.

What is a primary healthcare need?

There is no statutory definition of either a social care or healthcare need.  However washing, dressing, feeding, changing and monitoring health, including non-verbal communication are likely to be considered social care, so if you have needs greater than this, it is then these are likely to be considered healthcare.

How is it determined which is the primary need?

Everyone who receives care will receive some social care and in all likelihood, some healthcare support.  The issue regarding NHS Continuing Care Funding is what is the balance between the two and which one of the needs is primary.  To decide the balance the assessor will look at the twelve domains and the four key indicators.

What are the twelve domains?

The assessor will consider your separate needs in respect of various areas of health:

  1. Behaviour
  2. Cognition
  3. Phycological and emotional
  4. Communication
  5. Mobility
  6. Nutrition
  7. Continence
  8. Skin
  9. Breathing
  10. Medication and Symptom control
  11. Altered state of consciousness
  12. anything else not already considered.
What are the four key indicator?

The four key indicators are:

  • Nature
  • Intensity
  • Complexity
  • Unpredictability

The assessor will consider the nature of your need, where your needs emanate from.  How intense any one particular need is on its own.  How complex your needs are and whether they interact with each other.  And finally how unpredictable they are, how often your presentation changes.

When is someone entering the final stages of a terminal illness?

Often the final stages of an illness are considered to be the final three months, however the professional monitoring you will you advise.  In order the be granted NHS Continuing Care Funding the assessor will wait until they are sure that you are entering into this final stage.

I’m not in a care home, can I still apply?

Continuing Care Funding can be granted in any location, it doesn’t matter where the person is living, only whether they have a primary healthcare need.

How do I apply for NHS Continuing Care funding?

You must speak to your local NHS Trust in which your GP surgery is located and ask for an assessment of your needs.

I have a particular condition, will I automatically have the funding granted?

No, the funding is granted on how your condition presents, not on any particular condition.  As people often have co-morbidities, ie more than one serious health condition, the assessor will look at the totality of all your healthcare conditions in deciding whether you have a primary healthcare need.

Lasting Powers of Attorney FAQs (Click here for FAQs)
What are Lasting Powers of Attorney?

They are powers appointing someone else to manage your affairs if you become too unwell in the future to manage them yourself.  There are two kinds, one covering financial affairs and one covering health and welfare decisions.

What is a financial decision?

Anything that you own can be included in a financial decision, which includes your property and savings, and might also include any business that you might own or have a share of, it includes all your personal possessions and any outstanding loans.  Your attorney can do anything with you financial arrangements that you can, except make significant gifts.

What is a health and welfare decision?

Any medical decision about any form of treatment or drug therapy, including the right to refuse medication or treatment.  Social care decisions include what you wear, what you eat and who visits you.  An important decision is where you live, including whether you go into a care home and if so, which one.

What about life sustaining treatment

There is a separate question about life-sustaining treatment, such treatment can include CPR, food and fluid, medication, admission to hospital or antibiotics.  It is any kind of treatment that sustains life.  You can choose to allow your attorneys to make this decision on your behalf or not.

Can I appoint more than one person?

Yes, you can appoint both attorneys in first instance and substitute attorneys (if something were to happen to your first set of attorneys).  It is advisable to appoint more than one attorney, to ensure you still have someone to care for you, if something should happen to your main attorney/s.

How can the attorney act?

The attorneys can act either jointly which means that all of your attorneys must agree (which can be inconvenient) or jointly and severally, which means that any one of your attorneys can act on their own.  If you specify it, you can have a hybrid of this, where some decisions are jointly and some are jointly and severally, you need to stipulate which decisions are to be made either way.

How long does it take to create?

Technically the LPA is not created until the date that it is registered at the Office of the Public Guardian, which can take 2-3 months after the document is signed by the donor and the attorneys.

I’m thinking about waiting until I need it, is this a good idea?

As long as your proposed attorneys are over the age of 18, there is no time when it is too soon to create them, but if you were to have an unexpected illness or accident, it could be too late.  They do not need to be used immediately after they are created.

What happens if I don’t create LPAs and become unwell?

Your family will be forced to apply to the Court of Protection for a deputyship order, which takes longer than the registration of an LPA and costs more money in both legal fees and registration fees.  There are also ongoing bond and supervision costs with deputyship, which are not incurred with LPAs.