1. THE HOME OF THE PROFESSIONAL ADVISER Care and Incapacity For financial advisers only

2. By attending this session advisers should be able to: Understand the advice issues when dealing with the incapacitated Recognise the different types of power of attorney Understand intervention of the Office of the Public Guardian Explain the principles of the Incapacity Act Scotland; and The Mental Health Act (Scotland)1983 Learning objectives

3. What is and when does incapacity occur? Incapacity Act (2000) Scotland The funding issues Types of power of attorney Agenda

4. What is and when does incapacity occur? Incapacity Act (2000) Scotland The funding issues Types of power of attorney Agenda

5. Incapacity can occur at any time!

6. Not many clients do this!

7. But how many do this?

8. Raise the issue with clients May not want to think about it…BUT Ramifications if something happens?? Powers of attorney must be put in place! Points for advisers

9. A stroke or brain injury A mental health problem Dementia Learning disability Confusion, drowsiness or unconsciousness because of illness or treatment for it Substance or alcohol misuse. What causes a lack of mental capacity?

10. Either can occur at any age! Today we are considering the older client with dementia and care needs But incapacity not just about dementia – strokes, other illnesses? Physical and mental incapacity

11. The Scottish dementia numbers 1 Alzheimer Scotland October 2013 Around 86,000 people in Scotland have dementia - set to double in the next 30 years? 1 Dementia costs billions every year, and is going to increase massively Around 3,000 are under 65 and about 67% are female

12. What is and when does incapacity occur? Incapacity Act (2000) Scotland The funding issues Types of power of attorney Agenda

13. ……ensure those who lack capacity can make as many decisions for themselves as possible and …decisions made on their behalf - made in their “best interests.” Adults with Incapacity (Scotland) Act 2000

14. 5 principles of the Incapacity Act 2000

15. Any action or decision taken must benefit the person and only be taken when that benefit cannot reasonably be achieved without it. Principle 1 - benefit

16. Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person’s freedom as little as possible. Principle 2 – least restrictive option

17. For any action or decision made, account must be taken of the present and past wishes and feelings of the person, as far as possible. Principle 3 – take account of the persons wishes

18. Take account of the views of others with an interest in the person’s welfare. E.g. primary carer, nearest relative, named person, attorney or guardian (if there is one). Principle 4 – consultation with relevant others

19. Encourage and allow to make own decisions and manage own affairs as much as possible and develop skills needed to do so Principle 5 – encourage person to use existing/develop new skills

20. It is “capacity” to understand - NOT wisdom Test for capacity “decision specific” not generally “capable” or “incapable” Not a constant – “good” days and “bad” days No specific test to determine capacity When do you have “capacity?”

21. Capacity definition? “… a person lacks capacity …if at the material time they are unable to make a decision…because of, an impairment of, or disturbance in the functioning of the mind or brain”

22. What is and when does incapacity occur? Incapacity Act (2000) Scotland The funding issues Types of power of attorney Agenda

23. Who should pay for care if you have dementia? The individual? The NHS? The Local Authority?

24. It all depends!

25. Health Care or Social Care? HEALTH CARE Provided or funded by NHS Registered nurse –Hospital, care home, own home Respite care Palliative care Rehabilitation care SOCIAL CARE Non medical Local authority social services Home help, meals on wheels, respite care…. Equipment e.g. zimmer frames If in care home – will be a charge If intermediate care – free If in own home – eligibility requirements

26. NHS Continuing Health Care (Free!) How do you meet the eligibility criteria? Primary need for care must relate to “health”

27. N N N N N N N N N N N N N N N N N N N N N N L L L L L L L L L L L L L L L L L L L L L L M M M M M M M M M M M M M M M M M M M M M M H H H H H H H H H H H H H H H H H H H H H H S S S S S S S S S S S S S S P P P P P P P P Behaviour Cognition Psychological & Emotional Needs Communication Mobility Nutrition – Food & Drink Continence Skin & Tissue Viability Breathing Drug Therapies & Medication: Symptom Control Altered States of Consciousness Decision Support Tool Other significant care needs

28. NHS Continuing Healthcare – Scotland Independent report published – May 2014 (for April 2015) –Recommendations to improve the way CHC is provided. –CHC status to be determined by clinicians, BUT –focus on whether care required can only be provided safely and effectively in a hospital? –Ensure patients who require this acute level of clinical care will receive it in an appropriate hospital setting.

29. Self funding care for dementia Many people that have dementia or lack mental capacity are “self-funders” The biggest area of care is informal care provided by family/friends Cost to the state if it had to be paid for?

30. Emergency detention Up to 72 hours detainment Short-term detention Up to 28 days in hospital Compulsory Treatment Order (CTO) Only approval of tribunal Last for 6 months After care service free in England if “sectioned” Mental Health (Care & Treatment) Act 1983 * Source Health and Social Care Information Centre

31. Average nursing home fees: £734 per week Average residential home fees:£565 per week (1) Total allowances: – Personal Care Allowance:£169 per week – Nursing Care Allowance:£ 77 per week – Total £246 per week (2) Average shortfall: – Nursing:£488 per week – Residential:£319 per week Scotland’s care home fees 1. Laing and Buisson Care of the Elderly, 2014 2. Department of Work and Pensions April 2014

32. Average nursing home fees: £734 per week Average residential home fees:£565 per week (1) Total allowances: – Personal Care Allowance:£169 per week – Nursing Care Allowance:£ 77 per week – Total £246 per week (2) Average shortfall: – Nursing:£439 per week – Residential:£309 per week Scotland’s care home fees 1. Laing and Buisson Care of the Elderly, 2014 2. Department of Work and Pensions April 2014

33. “Free” personal care in Scotland

34. What is and when does incapacity occur? Incapacity Act (2000) Scotland The funding issues Types of power of attorney Agenda

35. Advisory process Acting on behalf of the client - working with the family Even with power of attorney - person who requires care is the client!

36. Advisory process Involving family? Power of Attorney required Conflicts of interest? Maximise income for elderly person and ensure good care for life OR Maximise the value of estate for inheritance

37. Powers of attorney Two types in Scotland Continuing power of attorney –Decisions on property and finances –Includes looking after investments Welfare power of attorney –Decisions of personal welfare

38. No power of attorney? One off transactions –Sheriff Court of Court of Session can authorise Use of bank account? –Office of the Public Guardian Incapable and in hospital? –Authorised hospitals can manage benefits/entitlements

39. Encourage clients to execute powers of attorney! Dealing with Office of the Public Guardian takes time - and costs client money! You cannot accept instructions without one or other Families cannot make decisions without power of attorney or deputyship Points for advisers

40. Main state benefits for elderly care? Attendance allowance – for 65 and over –Lower rate: £54.45 per week –Higher rate: £81.30 per week –Form is 32 pages long! –Ceases on receipt of PCA NHS Funded nursing care (RNCC) –£77 per week Paid to care home by NHS

41. LTC – All about advice, advice, advice! Ensure all state entitlements are being received Assess whether self or state funded BEFORE considering product Local Authority? NHS?

42. By attending this session advisers should be able to: Understand the advice issues when dealing with the incapacitated Recognise the different types of power of attorney Understand intervention of the Office of the Public Guardian Explain the principles of the Incapacity Act Scotland; and The Mental Health Act (Scotland)1983 Learning objectives

43. Thank you Partnership is a trading style of the Partnership group of Companies, which includes; Partnership Life Assurance Company Limited (registered in England and Wales No. 05465261), and Partnership Home Loans Limited (registered in England and Wales No. 05108846). Partnership Life Assurance Company Limited is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. Partnership Home Loans Limited is authorised and regulated by the Financial Conduct Authority. The registered office for both companies is 5 th Floor, 110 Bishopsgate, London, EC2N 4AY. LTC2026 10.14 V1