The NHS is responsible for paying for people in care that are deemed to have a health need but with experience, we have found that the NHS avoid their duties thereby avoiding funding people’s care and instead, the person in care has to use their assets to fund their care.
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It is common for elderly people to have cognitive impairment due to age or illness. Families may have a Power of Attorney in place (this is certainly advised and something we can assist with) meaning that there are no issues in relation to decision making.
If your relative has full mental capacity then they can request for the relevant NHS assessments to be completed. The NHS may refuse to allow family members to attend the meeting but you can certainly ask, perhaps suggesting support for your relative.
If your relative has unfortunately lost mental capacity, then to be in the best position you should have a Power of Attorney in place. This allows you to make decisions on behalf of your relative. If your relative loses capacity and you have not obtained a Power of Attorney then you may have difficulty with involvement of assessments. However, there are ways around this.
What you need to be careful of is how the NHS communicate the decision in relation to eligibility for NHS Continuing Healthcare to your relative. Often, even if it is clearly recorded in the documentation that your relative has severe cognitive impairment, the NHS will send the outcome to the care home who do not have a duty to pass it on to the relatives meaning that you could lose the chance to appeal a wrongly made decision.
At the assessment, you should make it clear of your involvement with your relative, and as a representative (under a Power of Attorney) insist that you attend that assessment as you have a legal right to. You should insist that the assessor records in the documentation that as the representative you want to be sent a copy of the outcome.
If your relative does not have mental capacity, the NHS may refuse to allow you to participate in the assessments – this puts them in a better position if they intend on refusing eligibility as there is no-one to assist your relative and essentially the NHS can score as they please.
If your relative does not have mental capacity and the NHS are refusing to complete the NHS Continuing Healthcare assessments you should refer them to the Best Interests as it is clearly in their best interests to find out whether they should be paying for their care. Unfortunately, it is an easy way out of the NHS funding the cost of care.
Even if your relative has passed away you can still commence a retrospective review into eligibility of NHS Continuing Healthcare. You will need to have authority to act and this is demonstrated by a Grant of Probate – if you don’t have this document we can arrange it on your behalf.