Avoid expensive Court of Protection fees

An article from Care Home Professional

Care homes are facing up to 12 months for unpaid care home fees from deceased residents, a leading law firm has said.

Residents that lose mental capacity and have no Lasting Power of Attorney (LPA) in place lose access to their funds and an application must be made to the Court of Protection for a suitable person to be appointed as a ‘deputy’ to manage their affairs.

This can be a lengthy and costly process, taking months before funds are available to clear unpaid care home fees.

When care home residents die, the uncomfortable topic of unpaid care home fees, and who is legally obliged to pay them, has to be resolved. 

As care home operators will know, it is a sensitive and complex issue and the legal obligations regarding unpaid care home fees can vary depending on several factors. 

In many cases, the responsibility of the debt falls on the estate of the deceased resident, such as property, savings or investments.

Donata Crossfield, wills and probate director at RG Law, said care homes are having to provide care without funding over a long period.

“Where a resident fails to create an LPA before losing capacity and there is no immediate family to help, the situation for the resident and the care home becomes very difficult.

“The resident cannot manage their own affairs, but the care home cannot have any access to their funds, and if the resident is not entitled to local authority funding, the care home is then providing care at a loss and arrears quickly escalate.

“Where there is no immediate family available, a professional and a local authority must make an application to the court to be appointed as a Deputy to be able to manage the resident’s finances. The court process is not quick and in some cases it can take a year for the order to come through. This means that the care home is not paid for many months until the court order is issued and registered with the banks so that payments could resume.”

Ms Crossfield said that when residents establish a Lasting Power of Attorney (LPA), this can be helpful in managing the financial and legal aspects of care home fees.

An LPA allows an appointed individual to make decisions on behalf of the person receiving care if they become unable to make these decisions themselves.

“If a resident is unable to pay their care home fees, the care provider or local authority may attempt to recover the outstanding amount. However, they cannot pursue the next of kin for payment unless they have explicitly agreed to contribute.”