Why Care Homes May Require a Lasting Power of Attorney or Deputyship Before Admission

When families are considering placing a loved one into a care home, the process can be emotionally and practically overwhelming. Among the many questions that arise, one that often causes confusion is why some care homes insist on a Lasting Power of Attorney (LPA) or deputyship order being in place before they can formally admit a resident.

This post sheds some light on this requirement and why it is not only common but often essential for the protection of both the resident and the care provider.

Understanding Legal Capacity and Decision-Making

Under the Mental Capacity Act 2005, individuals must be assumed to have capacity to make decisions unless it is established that they lack it. However, for many people entering care, particularly those with dementia, severe learning difficulties, or other cognitive impairments, there may be concerns about their ability to make complex decisions, such as entering into a contract with a care provider.

This is where an LPA or deputyship becomes crucial.

The Role of an LPA or Deputy

A Lasting Power of Attorney is a legal document in which a person (the “donor”) appoints one or more individuals (the “attorneys”) to make decisions on their behalf if they lose capacity. There are two types: one for property and financial affairs, and one for health and welfare. For care home admission and fee arrangements, the financial LPA is particularly relevant.

If the person has already lost capacity and no LPA was made in advance, then an application must be made to the Court of Protection for a deputyship order. This process can take several months and can be more costly and complex than setting up an LPA beforehand.

Why Care Homes Require Legal Authority

Care homes typically ask for proof of legal authority (either an LPA or a deputyship) for several reasons:

1. Contractual Agreement: Admission to a care home involves entering into a legally binding contract for services and payment. If the prospective resident lacks capacity, someone else must have legal authority to enter into the agreement on their behalf.
2. Financial Safeguards: Care homes need to ensure that the person managing the resident’s affairs has the legal right to do so. This helps prevent disputes about payments and financial responsibilities down the line.
3. Health and Welfare Decisions: In some cases, care homes may also need to liaise with attorneys or deputies about decisions relating to the resident’s care, medical treatment, or where they live.
4. Regulatory Compliance: Care providers are under increasing scrutiny to ensure they are acting lawfully and ethically. Verifying legal authority helps them meet their safeguarding obligations.

What Families Should Do

If your loved one still has capacity, the best course of action is to help them put in place a Lasting Power of Attorney as early as possible. It’s a relatively straightforward process but can be invaluable later on.

If they have already lost capacity, you should speak to a legal advisor about applying for a deputyship order. Be aware that this can take several months, so it’s important to begin the process early if care home admission is imminent.

Final Thoughts

Although it may feel like another administrative hurdle at a stressful time, the requirement for an LPA or deputyship is ultimately about ensuring that decisions are made lawfully and in the best interests of the person going into care. As a Court of Protection lawyer, I’ve seen firsthand how having the right legal authority in place can ease transitions, avoid disputes, and provide peace of mind for families and care providers alike.

If you need help setting up an LPA or making an application to the Court of Protection, don’t hesitate to get in touch with our team. We’re here to guide you through the process.