Choosing a care home: who has the right to make the final decision?

Year Published: 2018

An interesting place to start this topic would be with a question: when choosing a care home who has the right to make the final decision and say this is where you will live?

Well, you do! Except if you are too unwell to make your own decisions any more. If this is the case, you will likely be assessed by a doctor, or by a mental capacity assessor from Social Services. If they decide that you lack the mental capacity to choose where you should live, and you have not made a Health and Welfare Lasting Power of Attorney (LPA), then Social Services will make the final decision about your care. Of course, they need to consult you and your family about what would be in your best interests, but ultimately the decision is down to them.

Genevieve Powrie, Assocaite Elderly, Care & Mental Capacity Soliciotr at SAS Daniels

Genevieve Powrie, Associate Solicitor

Often there are practical issues of budgets and the availability of appropriate care placements (budgets and funding being a key issue) which restrict the options available. This can lead to disputes between family and Social Services, as well as top up fees being charged to you or your family to cover additional costs.

How can a Health and Welfare LPA help you when choosing a care home?

Health and Welfare LPAs were brought into being by the Mental Capacity Act 2005, which came into force on 1st October 2007. Prior to this date, it was not possible to elect another person to make care, medical and welfare decisions on your behalf.

Many people do not make Health and Welfare LPAs, but instead go on to make Property and Financial LPAs. The financial powers have obvious benefits (you can’t access a relative’s accounts and sell their home to pay care fees without one), but often people don’t realise the benefits of the health and welfare powers. Having a Health and Welfare LPA, when you can’t make decisions for yourself, shifts the decision-making power to your chosen attorney, away from Social Services. If you have a Health and Welfare LPA, it is your attorney who will have the final decision on what would be in your best interests, such as which care home you should go to, or whether you should be cared for at home, or even life sustaining treatment decisions (if you want them to have that power).

Can your next of kin make the decision?

It is a common assumption that your “next of kin” will be able to help with medical decisions and get involved with care placements if you should no longer be capable. Historically, this was true, but since the Health and Welfare LPA came on the scene, the next of kin has no legal rights to make decisions for a patient at all.

Why make a Health and Welfare LPA?

If you would like members of your family to have the last say over where you are cared for in the future, over what medical treatments would be in your best interests, and even whether life support should be withdrawn then you should consider making a Health and Welfare LPA. There are plenty of options for a hierarchy of decision makers. For example, your spouse/partner as the first decision maker, with your children or a close friend as replacement(s) if your spouse/partner is unable to do it. You can also include your preferences and specific instructions to be followed. If you take professional advice, you can be guided through the options and given ideas for suitable clauses to include in your power of attorney.

Don’t leave it too late! The Court of Protection regularly appoints financial deputies for people who didn’t prepare a Financial LPA, but very rarely appoints health and welfare deputies. If you don’t have a Health and Welfare LPA and you lose the mental capacity to make one, it is probably too late to appoint anyone. There would have to be very special reasons for the Court of Protection to decide to intervene, especially if you once had the ability to make one but didn’t!

For more information on choosing a care home or making a Health and Welfare LPA, please contact Genevieve Powrie in our Elderly, Care & Mental Capacity team on 01625 442146.

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