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  • Writer's pictureTeam Nellie

Selling a property as a deputy or attorney

Updated: Sep 22, 2023

418,000 people currently live in care homes in the UK. There can be various reasons for moving into a care home, from people electing to move in themselves for social inclusion to being placed by the NHS or Local Authority due to a mix of lack of mental capacity and high care needs.

When someone is self-funding and placed by statutory services into a care home, they can occasionally fall between the gaps; with their care fees being managed by an attorney or deputy, it can be often seen that statutory services have no further need to be involved.

The court of protection guidance to deputies when selling a property requires evidence in the form of a standard authorisation form (dols) and "any best interest meetings or notes before the person was placed into care".

The standard of authorisation or DOLS is where "Care homes or hospitals must ask a local authority if they can deprive a person of their liberty". In other words, an authorisation that the person is being deprived of their liberties lawfully. However, this does not evidence that the individuals care needs could not be met elsewhere, for example, at home.

But a DOLS authorisation may not have been granted, or the person may not meet the acid test for DOLS but still have a deputy in place. After all, the Mental Capacity Act (2005) is clear capacity is decision specific, and while someone may not have the capacity to manage their finances, they may have sufficient capacity to make decisions relating to DOLS.

This is where an expert assessment on the specific decision of whether a person can make a decision regarding their "residency and care needs" is beneficial. After all, if the person does have the capacity, then they can be supported to make the decision regarding their care and where it should be met.

A past case whereby a gentleman was placed by his housing authority into a care home due to self-neglect issues highlighted where reliance upon a standard authorisation is inappropriate. Upon visiting the gentleman, our Social Worker identified he had no issues with his capacity (there was no impairment of the mind or brain) and elected to order himself a taxi and return home that same afternoon. In this case, the attorney had been contacted to advise the gentleman had been placed in "long term care" and contact Nellie Supports to ensure a decisions specific assessment and care assessment were completed before any further decisions were made.

To make the decision on where a person's needs can best be met, evidence of these needs must be collated; best practice suggests this would be in the form of a Care Act (2014) compliant care assessment. While statutory services should ensure a care assessment and best interest decision is made prior to placing someone into a care home, self-funders especially can slip through the net.

Relying upon standard authorisation to identify where care needs should be met in a person's best interests is not possible; the Care Act (2014) is specific in the domains that should be assessed to identify needs and that a specific care plan should be created to identify how these needs can be met. When assessing someone's capacity, they must be able to understand the relevant information; when making decisions regarding long term care and property sale, the evidence from a care assessment and care plan is necessary, relevant information and without it, any decision is flawed.

As a Social Work practice, we aim to ensure that no one slips through the net; we have supported many clients who have been placed into care homes inappropriately and have been able to identify their needs could be met at home and through completion of a best interest checklist identified this option was in their best interest. Conversely, we have also identified the opposite and been able to provide the evidence to deputies and attorneys to then decide to sell the property to fund ongoing care.

If you are in a position where statutory services have been unable to provide the necessary evidence to evidence it is in the person best interest to remain (or move to) long term care, contact our team today and see if we can support you in ensuring decisions are made in the persons best interests.

Check out our long term care report here

Team Nellie

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