Laith Khatib, director and Head of Wills, Probate and Private Client comments on a report which revealed there could be an incapacity crisis looming over our nation. More...

Howells have put together a plain, expert guide to lasting power of attorney. Whether you are considering arranging lasting power of attorney for a family member, friend or solicitor, or have been asked to take on the role of attorney, this complete guide will answer all your questions. In this guide we will be covering:

• The duties of an attorney
• Who can and cannot be an attorney
• Having more than one attorney
• Different types of attorney
• How to choose an attorney
• How to find highly regarded solicitors for the elderly More...

In this week’s Panorama programme, presenter Vivian White highlighted the risks in using a will writing service. Many people are under the false impression a ‘will writer’ is a solicitor, but unlike a solicitor they do not have to undergo any training, have insurance, and are not regulated by any organisation which ensures that they conduct their activities in the interests of the consumer and provide some form of redress, if things go wrong. If they go out of business, there is little that can be done - sometimes the will cannot be found, even where charges have been made for storing it.

Andrew Poole’s wife, Suzanne used a will writer, but the will failed to include any provision for him, leaving the entire estate in trust for his stepdaughters. Caroline Bielanska, Chief Executive of Solicitors for the Elderly, appeared on the programme and expressed concern that a spouse had not been provided for. The will writers appeared to have failed to advise on his right to bring a claim against the estate for inadequate provision. She said, ‘a specialist solicitor would have asked why a spouse was left out, kept a detailed record of those reasons and advised of the high risk that the will would be challenged’. Solicitors are in the business of giving legal advice, taking into account the client’s domestic and financial circumstances - it does not appear that Suzanne Poole received any such advice’.

The lack of regulation has enabled many will writers to adopt high pressure selling techniques which was illustrated in the programme, often offering wills for a low or discounted fee, and then recommending themselves to be appointed as executors, selling other services without full advice, such as transferring the home into a trust in an attempt to avoid care fees. Terms and conditions can be poorly worded and difficult to understand. In secret filming undertaken by the BBC for the programme, an elderly couple was not told the details of charges which were confusingly set out in writing but then taken away by the will writer.

The fear of solicitors costs, prompts some people to use will writers. Alison Huggins of Howells Solicitors who have offices throughout South Wales commented, “Solicitor’s are required to set out in writing the basis of their charges, and in many cases wills are undertaken for a fixed fee with free storage of wills and other documents.” Recent research by the consumer group, Which? found that the average fee for will drafted by a solicitor was £130, compared to a will writer of £107.

Alison Huggins (one of the few lawyers in Wales who is a member of Solicitors for the Elderly) said, “This programme highlights the potential for getting it wrong without full legal advice and the need for proper regulation of will writers. It can be very costly to undo after you have gone and can leave your family in disarray when they have to pick up the pieces as problems generally only come to light when you have died.”

Social Care Charges (Wales) Measure 2010 by Alison Huggins, Elder Client Specialist of Howells Solicitors

(This article was first published in Elderly Client Adviser - www.ecadviser.com)

The coalition Welsh Assembly Government stated in its “One Wales” programme that during its term it would bring forward legislation to create a more level playing field in relation to charges for domiciliary care services. It has fulfilled that commitment in passing the Social Care Charges (Wales) Measure 2010, which received the Royal Assent on 17^th March 2010.

In Wales, this measure will replace the Westminster enacted Health and Social Services and Social Security Adjudications Act 1983, which gave local authorities the power to recover such charges they considered reasonable from recipients of non-residential social care services.

In 2002, the Welsh Assembly Government issued guidance to local authorities entitled, “Fairer Charging Policies for Home Care and other non-residential Social Services”. This was not prescriptive, but was meant to help local authorities in setting reasonable and fair charging policies. Nevertheless, despite the guidance the discretionary powers of local authorities led to wide variations in approach across Wales.

A report commissioned by the Welsh Assembly Government in 2008 and conducted by consultants L E Wales concluded that inconsistency existed in most respects of charging policy, including: the range of chargeable versus charge exempt services; the level of charges levied; disregards and limits; the use and level of a maximum charge; and in the provision of information on charging. Examples of inconsistency included: 15 out of 22 local authorities charged for day care services; hourly rates for home care services ranged from £5.60 to £15.32; the maximum weekly charge for services ranged from £16.50 to £200, with some local authorities not operating any maximum charge. The report highlighted the potential for this inconsistency to lead to unfairness and the unequal treatment of service users across local authority boundaries.

The publication of the L E Wales report findings by Gwenda Thomas AM, Deputy Minister for Social Services, led to predictable protest from the service users paying the highest charges. It also resulted in some of the lowest charging local authorities seeking to increase their charges and the types of services they charged for.

The report was followed by the publication of a draft measure and a policy intention statement, setting out the initial changes the Welsh Assembly Government wished to make. This ‘First Steps Improvement Package’ included:

• A maximum weekly charge of £50 per recipient of non-residential social care for all the services received;
• Regulations to make the statutory elements of the Fairer Charging Guidance mandatory, including income buffers and disregards;
• Regulations prohibiting authorities from charging for the provision of transport to day centres;
• Regulations requiring authorities to introduce a procedure for reviewing charges.

The intention is to establish a fairer system for all client groups, which is simple to understand, cost-effective to administer, and potentially reduces the charging burden on service users. The measure was welcomed by service users and representative organisations, although it also received negative attention from local authorities on the grounds that it would fetter their discretion to operate local charging procedures and would be expensive to implement. Local authorities will however, be reimbursed for lost revenue. The Welsh Assembly Government has set aside £11 million to help local authorities implement the measure and regulations.

Despite the opposition, the Welsh Assembly Government, assisted by a task and finish group which consulted widely with stakeholders, pressed ahead with the legislation. Currently, there are several task and finish groups working on preparing the regulations and guidance, which will make the provisions outlined in the First Steps Improvement Package a reality in Wales from April 2011.

Age Cymru, the new charity combining the force of Age Concern Cymru and Help the Aged in Wales, as members of the Coalition on Charging Cymru, are seeking the removal of home care charging. However they state: “this measure is a significant step forward in Wales limiting the amount which people are charged for the non-residential care services they need. Whilst some discretion for local authorities in their charging processes will remain, there will be much greater direction from the Welsh Assembly Government and the maximum charge of £50 will mean a significant reduction in many people’s charges. We believe this legislation will remove the worst examples of inconsistency. “

National Framework for Continuing NHS Healthcare (Wales) issued 13th May 2010

Continuing NHS Healthcare (CHC) is a package of care arranged and funded solely by the NHS in England and Wales, where it has been assessed that the individual’s primary need is a health need. On May 13th, two and a half years after publishing the draft for consultation, the coalition Welsh Assembly Government issued new guidance in the form of the National Framework for Continuing NHS Healthcare.

Framework states it is Welsh Ministers’ Policy

• To put much greater effort into developing models of service which help to prevent or delay the need for more intensive health and social care services or facilitate a return to lower level support (for example through prevention, re-ablement or rehabilitation). This framework is therefore intended to complement and support existing joint strategies not replace them.
• To ensure that the available resources are used effectively in accordance with this strategic approach.
• To foster a much more collaborative approach across health and social services in these areas and to avoid local disputes.
• For those who may be eligible for CHC to put in place a sound national framework, good decision tools, training and review arrangements to ensure speed, consistency and fairness in decisions.

England has had a National Framework for Assessing Continuing NHS health care since 2007 and despite this having been revised in 2009, it is clear that problems still exist in both England and Wales. In a recent article in the Daily Mail, Solicitors for the Elderly stated that, “a barrage of obstacles is placed in the way of families with elderly relatives needing long-term care, including the following:”

• They may not be told that funding is available - especially if their relative owns their home.
• They are often not offered an assessment to decide whether their relative would qualify. Without one, they have no chance of applying for continuing health care costs.
• Health authorities reject requests for assessments.
• Assessments made by medical teams are downgraded by the Primary Care Trust (PCT) so that the elderly person does not qualify.
• PCTs (Local Health Boards In Wales) ignore clear needs in assessments.
• Families are not allowed to see the full medical records.
• The bar for judging the severity of illnesses is set too high.
• The Strategic Health Authority (SHA) independent review panels refuse to allow lawyers to represent families; although they can attend as a family friend, as long as they don't raise any legal arguments.

Caroline Bielanska, Chairman of Solicitors for the Elderly, added: “It seems that the more obstacles that can be created, the more chance people will give up and thus save the NHS from paying out.”

The Welsh Guidance mirrors the English Framework in most respects. However, it significantly departs from its English counterpart by stating that the assessment of CHC must be carried out wholly within the context of, “Creating a Unified and fair system for Assessing and Managing Care”, under which the totality of a persons health and social care needs are assessed. Also the Welsh Framework does not deal with the assessment of Continuing NHS funded nursing care with anything like sufficient clarity compared to the English Framework.

The Welsh Assembly Government has stated that it will develop with stakeholders an All Wales Continuing NHS Healthcare training programme which will be multi-disciplinary in its approach. The Framework contains a mandatory requirement for Local Health Boards to review their current assessment training, quality assurance and discharge processes to ensure they are compliant.

On 1st March 2010 the Department of Health published practical guidance intended to support practitioners and others with responsibilities for NHS continuing healthcare in the implementation of the revised national (English) framework of July 2009, and in the use of associated tools. It is hoped that the Welsh Assembly Government, along with its stakeholders will develop similar guidance as soon as possible to fulfil its policy intentions referred to above.

Conclusion

In the mean time, practitioners in both England and Wales, when acting for clients regarding decisions on payment for care and eligibility for Continuing NHS healthcare, should ensure that:

• Clients are fully involved in the assessment process and obtain all relevant documentation.
• Use is made where appropriate of the NHS and Ombudsman complaints system.
• Stakeholders such as Community Health Care Councils and charities representing the elderly and the disabled receive accounts of where assessment processes have not been properly followed, so a body of evidence can be developed to influence future policy and implementation.

In the long term the New Westminster Government has announced it is establishing an independent Commission on Long Term Care. The Government also announced plans to reform the NHS including merging health and social care budgets and prioritising preventative care. This will include charging for social care in a residential setting and NHS funded nursing care, which are not dealt with in this article. These intentions have been welcomed by charities representing older and disabled people. Elderly client practitioners therefore can anticipate radical change in this area of law in due course. Sadly, despite the measures referred to in this article, elderly people are still potentially being wrongly forced to pay for their care both at home and in residential settings due to assessment processes that are inconsistent or are being unfairly implemented.