Who Is Your Next Of Kin?

Many people think their NOK is their nearest relative but this is not the case. Read why in my latest blog post

grandparentsI sometimes act as Health and Welfare attorney for people who have no family or solicitor willing to act in this capacity. For those who have lost capacity, I am recorded as their Next of Kin (NOK) with their GP, other health professionals, hospitals and care providers. I enjoy being NOK because it makes a difference to the individual I am supporting. After all, we all need to matter to someone!

So let’s look a bit closer at what NOK means. Health and Social Care, independent consultants like myself, and care providers, often ask people “Who is your next of kin?” The term is used as a kind of shorthand for “Who do I/we communicate with about you?” However, the term has no legal status when you are alive and is unreliable because it does not identify if the person is your closest relative or the person most important to you. In fact, they are often different people.

The term NOK is commonly used and there is an assumption that the person you identify as your NOK has certain rights and duties. As health and social care professionals, we should always consult with the people closest to the person who lacks capacity, to understand the person’s wishes and feelings and to help them make a decision in that person’s best interests. However, the person identified as NOK should not be asked to sign and/or consent to certain interventions unless they have a legal basis for doing so. This is a mistake made in many hospitals nursing and care homes where family members are asked to sign care plans, end of life plans etc and provide consent, which is not legally valid.

The only situations where a NOK is legally valid for signing health and/or social care forms are when the person has a registered Lasting Power of Attorney (LPA) for Health & Welfare or is a Court appointed Deputy. In the latter’s case, deputyship needs to be for health and welfare decisions although a Deputy for Financial affairs can sign a contract with a care home as it relates to finance. An Enduring Power of Attorney is not valid for health and social care decisions neither is an LPA for Property and finance.

I cannot stress enough, the importance of making a Lasting Power of Attorney for Health & Welfare as well as for Property & Finance as soon as possible, ideally at, or soon after retirement. So many things can happen to take away our ability to make decisions and it can happen in the blink of an eye when we are least expecting it e.g. a stroke, accident, or brain injury. I always advise people to use a solicitor to make their LPAs. You can get the forms off the internet and do it yourself but you wouldn’t know if you had made a mistake until it was too late and would miss out on valuable legal advice. If you don’t have a solicitor you can find one here Solicitors for the Elderly

7 tips for planning a Care Needs Assessment

In my previous blog, How To Avoid Negligence Claims – Working With Elderly Clients I outlined ten important questions to ensure practice is sound and person-centred and said that I would explore each one separately. My first considers care needs assessment for older people.

Local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks they have eligible needs and regardless of their financial situation.

The duty is triggered under Section 9 of The Care Act 2014 for anyone who appears to be in need of support services.

The purpose of an assessment is to identify the person’s needs, how these impact on their well-being and the outcomes that the person wishes to achieve in their everyday life.

Even if the person doesn’t want the Council to support them it is helpful that they have a needs assessment to provide a foundation for care navigation and procurement.

There are two interdependent parts to the assessment and both must be met to qualify for social care funding. These are care and support and financial eligibility

Planning senior care on a whiteboard.
Using a Care Needs Assessment For Planning
  1. The criteria used to assess care and support needs

To be eligible for social care funding a person must be assessed to have a ‘substantial’ or ‘critical’ level of need. As a minimum, they are likely to need support with personal care and daily living on a daily basis.

  1. How financial eligibility is determined

The following rules apply to financial assessments for both residential care and care in the home:

  • People with over £23,250 pounds savings/capital will meet the full cost of their care.
  • People with between £14,250 and £23,250 will make a contribution from their savings/capital as a tariff income of £1 for every £250. A contribution from income will also be assessed.
  • People with savings and capital below £14,250 will not make a contribution from capital but contribution from income will be assessed.

The difference between the assessments is that for residential care, a person’s property is taken into account.

  1. The care assessment

A Care assessment is not always undertaken face-to-face. It is not unusual for an unplanned screening assessment to be carried out directly with an older person over the phone. This can come out of the blue to the older person, especially if they live alone. Older people are proud and often eager to minimise the help they need. Many are hard of hearing. Make sure you ask to be advised if and when a phone assessment will be taking place when making the referral, so you can prepare and support the person.

During the assessment the person should be advised to answer all questions as if it was their ‘worst day’ without any support.

  1. The person must have capacity to make decisions during the assessment

If an individual requiring assessment lacks capacity and there is no registered LPA in place, the Care Act imposes a responsibility to refer the matter to the Court of Protection who can appoint a professional Deputy.

  1. The person has to be offered support to participate if necessary

New rules under the Care Act 2014 allow the person to take the lead in explaining what support they need to make life easier for them.

There is also a duty to provide independent advocacy to represent and support the person, if needed, to facilitate their involvement in assessments.

  1. Unpaid carer’s needs and their need for support are entitled to be assessed

There is a duty for carers to receive an assessment regardless of their needs for support or their financial resources. Also to provide independent advocacy to represent and support them if necessary.

  1. Obtain a written copy of the assessment

The assessment and any other relevant information will be recorded and authorised. Make sure the person obtains a copy as they or their representative have the right to challenge or dispute anything they don’t agree with.

Here are some helpful links

The Care Act 2014 – Assessment and Eligibility

How to get help with social care for adults in West Sussex

Apply for adult care assessment in East Sussex

Apply for adult care assessment in Surrey

My next post will consider Health Assessments

Avoid negligence claims with elderly clients

All legal professionals working with elderly clients want to avoid negligence claims when working with elderly clients. Unfortunately we live in an increasingly litigious society and attorneys and professional deputies are coming under increasing scrutiny. The number of elderly clients is also likely to increase as we have an ageing population in the UK. There are now 14.9 million people aged over 60 and this is expected to exceed 20 million by 2030.

Whether you are Attorney for health & welfare, or professional Deputy for an elderly client, it is important that you understand what needs to be done so you can be confident of best practice when working with older people and avoid potential for a negligence claim or disquiet from the OPG.

It is seen as good practice by the Office of the Public Guardian (OPG) to apply a high standard of care by involving and getting advice from other professionals, for example a qualified independent care professional and requires deputies to work with third parties to achieve the best possible outcomes for clients. These standards require solicitors to:

  • Ensure any level of care (including any supplementary therapies or treatments) is relevant to the client, good value for money and appropriate to the level of funds available.
  • Review or commission a care plan or occupational therapy report and commission any aids/adaptations necessary to ensure that the client’s needs are met.
  • Allocate a care professional when the client doesn’t have any family, carer or friend who could advocate on their behalf.
  •  Carry out a health review/assessment at least once a year to ensure the clients needs have not changed and are still being met.

My team of social work and occupational therapy consultants at Relative Matters support solicitors in Sussex and Surrey to meet these high practice standards. Occasionally we come into contact with someone whose needs and circumstances have been overlooked.

Example of the need to avoid negligence claims

Mr. Jones, an 88-year-old gentleman, had been placed in a high end residential home. His only relative was a nephew who showed no interest in him. His solicitor had a Lasting Power of Attorney for his property and finances.  Following a hospital admission his solicitor referred Mr. Jones to Relative Matters. The care home had refused to have Mr. Jones back when he was ready for discharge and we were asked to find a suitable placement for him. General-DSCF3361-GM291013-1100x1466

When I visited Mr. Jones in hospital he was apathetic and withdrawn. He was dressed in a hospital gown and had no personal toiletries. A glass of water was placed on his bedside cabinet but he was unable to reach it and appeared not to like water anyway.

We were advised that no one had visited, despite the care home being paid in full for the duration of his six-week stay. Hospital staff had no personal information about Mr. Jones so conversation between him and hospital staff was limited and treatment restricted to his medical needs.

Mr. Jones was only receiving the lower rate of Attendance Allowance (he would have been entitled to the higher rate for some time) He had not been assessed for NHS Continuing Healthcare.

When I went to collect Mr. Jones’ clothes and toiletries from the care home I found photographs of him looking at me proudly in a naval uniform and another in a family group.

This proud man who had fought for his country had ended up a virtually anonymous patient without the dignity of even having his own clothes and toothbrush. His income was also less than it should have been.

Visiting someone in hospital is important for someone’s well-being. It is also an act of kindness and compassion. If your client is admitted to hospital it is not necessary to go yourself, but good practice to make sure someone visits.

Here are the questions you need to ask yourself to ensure your practice is sound and person centred.

  1. Have their needs been properly assessed?
  2. Is there a care plan in place?
  3. Are they receiving the public funding/welfare benefits they are entitled to?
  4. Has a specialist independent financial advisor been involved in planning future care fees?
  5. Is their care and medication reviewed regularly?
  6. How are safeguarding issues identified and addressed?
  7. How are Deprivation of Liberty Safeguards (DoLS) monitored?
  8. Does an independent care professional attend Best Interest (BI) meetings?
  9. Do they have LPAs in place?
  10. Are their end of life wishes known and recorded?

Over the coming months I will consider each question in depth and will be looking at Needs Assessment very soon. In the meantime please let me know if you have an issue relating to working with elderly clients I can help you with.