Legal Rights on Choosing Your Own Care Home

Year Published: 2020

When choosing your own care home, it is presumed that you should get the final say in a decision that ultimately determines where you will be living. However, this is not always the case; our team explains below.

In most cases, you can choose your own care home. The exception is if you are too unwell to make your own decisions anymore. If this is the case, you will likely be assessed by a doctor or 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.

Often, there may be 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.

A Health and Welfare LPA Can Help When Choosing Your Own 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 choosing your care home placement if you are no longer 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.

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.

Taking professional advice can help to guide you through your options and ideas for suitable clauses can be given to include in your power of attorney.

For more information on your legal rights when choosing your care home, contact our Partner and Head of Elderly, Care and Mental Capacity, Justine Clowes, on 01625 442148 or email [email protected].

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