denotes premium content | Jan 10 2009 Feature
posted 1 Mar 1997 in Volume 2 Issue 3
Going into Residential Care
Enabling your clients to make the best possible choice
Clients entering into the residential and nursing care maze are often faced with a bewildering number of options and the availability of clear cut objective advice is often the last issue to be considered. They can therefore be pressurised both by their families and by social services, into making an inappropriate decision. Advance planning to put the paperwork in place and also to take necessary financial decisions is not always possible, but as previous articles in ECA by Ken Hart and Philip Spiers have indicated, there can be ways through the financial issues even at the last minute. However, making the wrong decision about the care options available is not always surmountable for the frail elderly client.
The best advice for those looking at care options must be from the adviser who understands and knows how the local system works in their area. For anyone involved in advising upon community care issues the National Health Service and Community Care Act 1990, together with the related Legislation, Regulations and Directives is not enough. What is needed is a realisation of how the particular local authority interprets that legislation and the related documentation. It is an unfortunate fact of life that each authority, in the absence of national guidance and the paucity of case law, is developing its own way of interpreting statute and regulations.
So what should your client be considering and what advice should be on offer? Almost certainly whether or not this move to residential or nursing care is the only option open to the client. This is where the independent legal adviser can often offer a clearer and more objective view both through an awareness of the law and the relevant pitfalls and more importantly by an overall knowledge of the client which may not necessarily be available to others who have little or no knowledge of the client's wider circumstances.
As an initial step the first issue should be identify the route through which the client is seeking the avail themselves of services under the National Health Service and Community Care Act 1990. Is it as a frail elderly person whose entitlement derives from the responsibilities under the National Assistance Act 1948 or does the client's entitlement arise under the Chronically Sick and Disabled Persons Act 1970? The assessment under section 47(i) of the National Health Service and Community Care Act 1990 should identify this in the initial assessment of need, whether by way of a multi-disciplinary assessment upon discharge from hospital or one requested by the client or their carer. The establishment of these factors early on will impact upon the way in which any care package is negotiated.
Knowledge of the local system can be particularly important at this stage, as local policy may be not to fund domiciliary care, which may be the client's first option, beyond the level of funding for residential or nursing care. So, whilst in theory there is always the choice to remain in one's own home with support, this may not always be the practical option. Ensuring that clients are kept up to date on these issues is significant in ensuring that they are realistic in their expectations.
Knowledge of the local eligibility criteria (normally available from both the local authority and the local health authority) can be critical in the choice of action at this stage. Entry to residential or nursing care without the benefit of an assessment may be inadvisable if, in terms of the local eligibility criteria, the client would be low down the priority list and at some stage in the near future, he or she would be reliant upon state support. Albeit there is a loophole available at present which enables support to be claimed via the Benefits Agency. However funding a place in this way carries its own risks as the payments are less than those made by the local authority and there will therefore be a shortfall in funding which will have to be met from other sources.
Ultimately therefore the critical factor will be the determination of need and the way in which that need can be met. Clients need to be aware that not all their perceived needs can or will be met. Having reached this point, if not already undertaken, then independent financial advice on how to fund any placement is needed and the significance of self funding and the availability of disability benefits should not be overlooked. There is some evidence that clients are not always made aware of this issue nor of the fact that entry into Part III accommodation as a self funded resident will also affect these generally tax free benefits. A welfare benefits check is therefore an important issue in preparing for residential or nursing care.
At this point the client needs to be aware that choice is available via the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 and 1993 The choice may be restricted, if the client is supported by the local authority they may only be prepared to assist in placements within the price range that they are normally prepared to fund. Those who run out of funds may therefore find themselves moved from homes which were their own initial choice which fall outside this category.
What does the client need to know if the point has been reached where the only option is residential or nursing care?
First it is essential to identify the level of care that is required for someone with the client's needs and to consider the types of home available in the local area, the size of these homes and the category of people who are cared for by those homes. Not all homes will be able to cater for every type of resident. Their registration details are usually available from the local authority and this will identify both the categories of resident and the numbers which the home can take within each category. Residential homes will be registered with the local authority, nursing homes with the health authority and dual registered homes which can offer both levels of care will be registered with both. Most registration authorities will categorise homes within the following range:-
E-elderly i.e. those over 65
EMI - elderly mentally infirm
Other categories may include the terminally ill or chronically sick or those who are under 65 who are suffering for mental health problems or physical disability or alcohol or drug problems. Ab initio it is therefore important to identify the correct type of home for the client. It also equally important to ensure that the client is aware of the pitfalls which can arise through choosing the wrong type of home and, if likely to be state funded at some point, of the pitfalls which can arise in actively depriving oneself of assets (see articles by Philip Laidlow in ECA).
Residents' rights in homes have little or no support at law and it is therefore important from the outset that the client and their family ensure that they have a clear understanding of the nature of the arrangements that they are entering into and the commitments which they are being asked to undertake.
A checklist for clients of these issues is helpful and they be referred to the Age Concern Factsheets, Homelife a Code of Practice for Residential Care, the Care Homes Directory and the Regional Residential and Nursing Home Directories. All give valuable guidance and help on what the expect.
The key issues must be:-
Fees - what will it cost and how are these fees to be raised and paid to the home? Does this raise any issues about capacity to deal with financial affairs?
What services will be provided for those fees and will the fees be reviewable, and if so when?
What are the extras not covered by those fees?
What accommodation will be provided? Is it on a shared or single room basis?
What the resident is expected to provide and whether any personal items of furniture can be brought into the home?
What arrangements will be made to insure these items?
What security arrangements will be offered for any valuable items?
Are pets allowed, whether the residents, or visitors bringing in their own?
What notice period is required for permanent vacation of a room or notice about temporary absence?
The circumstance in which a resident would be asked to leave a home.
Procedures for terminating an agreement or changes in the terms and conditions of residence.
Details of registration and who the registering authority is and how to resolve any complaints and how to resolve them in the event of serious disputes arising.
What the procedures are if the resident dies.
What happens in the event of hospitalisation?
Practical issues for the resident are more personal and will bring in to play family situations and the personal preferences of the resident. These may include visiting the home and meeting with the other residents and also considering a trial period before a final decision is made. It will usually involve visiting more than once and it is recommended that the visit is made with someone else as this is often a very emotive time and decisions may otherwise be clouded. Above all the client should not rush into and accepting a place without thinking matters through and looking at all the alternatives. A preferred home may not necessarily have a vacancy in any case.
It cannot be underestimated how important it is not to dispose of property and in particular the family home until it is clear that the arrangements will work out otherwise serious problems can arise for the elderly client.
Other issues that the prospective resident should not overlook are:
THAT THIS IS TO BE THEIR HOME FOR THE FORESEEABLE FUTURE AND THEY WILL NEED TO BE ABSOLUTELY SURE THAT THE CHOICE THEY HAVE MADE IS THE BEST POSSIBLE ONE FOR THEM.
They should try not to let others influence their choice. The issues which many clients overlook are those of a more practical nature and which not only affect them but may also affect family and friends for example accessibility by public transport, convenience to local amenities like shops, post office, church etc.
Often no check is made about the freedom to come and go on a daily basis and this can be important in retaining independence. Questions also need to considered for those who will wish to visit and how easily this can occur. For example can people like solicitors and accountants be seen in privacy? Are visiting times restricted?
Accommodation needs to be looked at from the perspective of could the client live there and be comfortable with the environment, the general atmosphere, the facilities on offer, the general standards, privacy available to the client, bathing and toilet facilities, recreational and dining provisions, general access in and around the home - for example can wheelchairs be used easily?
Questions will also need to be addressed as to the level of care offered and the ability to use ancillary community health services and the client's own GP. Some homes will run their own transport services to ferry their residents to their GP and also to go out and about. Menus and catering need to be looked at - are menus both varied and balanced; can hot drinks be obtained whenever requested? Are visitors offered a meal? The overall impression of rooms and the presentation of meals can be useful indicators of the home's standards. This is going to be the client's home and it is therefore important not only that the standards will be acceptable to the client and their family. Issues like the approach of care staff to residents, the management of medication, the appearance of residents' independence, dignity, privacy, choice whether of room or menu or care should be considered. A good home will have clear cut policies on complaints, arrears of fees, medication, pets, smoking and alcohol, and visitors.
The home should be able to produce a mission statement, a brochure and terms and conditions of entry. All paperwork from the home's contract to the local authority assessment should be checked in order to protect the elderly resident.
The sooner these issues are addressed the better.
Anne Edis, Solicitor and Legal Consultant, 11 Old Pond Lane Castor, Peterborough, PE5 7BX, Tel: 01733 380444
