The increased use of digital and virtual assessment in adult social care brings advantages for some but also raises concerns about exclusion.
Colleen Dooney, director in Wake Smith Solicitors’ private client team, and also trustee at Age UK Sheffield, looks at the organisation’s ongoing campaign to make sure there is digital inclusion and how to ensure the correct legal processes are in place, if needed.
This article covers:
- New guidance from the DHSC
- Is a Lasting Power of Attorney appropriate?
- Why put a Health & Welfare LPA in place?
- Your next move
New guidance from the DHSC
The Department of Health and Social Care (DHSC) has published new guidance in the wake of concerns about proposals to streamline adult social care assessments, by:
- Increasing the use of digital/online tools in the assessment process
- Making greater use of virtual assessments
- Outsourcing assessments to third party agencies
- Dealing with shortages of social workers by using un social work assistants or trainees – for example, those undertaking apprenticeships
The guidance is intended to supplement the provisions in the Care Act 2014 (“the Act”) and support existing statutory guidance.
Statutory guidance states assessments can be carried out in a range of formats, depending on the person’s needs or preferences either via face-to-face; online; over the phone; jointly with other bodies, in combination with the assessment of a carer or as a supported self-assessment.
The new guide says face-to-face assessments are “necessary and appropriate, if there are complex needs or safeguarding concerns”, but that virtual assessments may be proportionate “if all of the following conditions apply”:
- the situation is fairly straightforward, with no coercion, neglect or safeguarding concerns;
- there is a stable internet connection and access to technology;
- the person has capacity to engage in the assessment, and their communication skills are good.
Whilst the guidance is welcomed, there is still a concern that much more needs to be done about digital inclusion – in both the elderly and disabled communities. Age UK have a wealth of resources.
In addition, the guidance stresses that in order to engage in the process, “the person..[should have] capacity…., and [good] communication skills”.
Is a Lasting Power of Attorney appropriate?
Should a person not have capacity, then social workers will be required to undertake a best interests assessment.
Your spouse and other family member do not automatically have any power to make decisions on your behalf.
A Health & Welfare Lasting Power of Attorney (LPA) is a legal document that enables a person, known as the Donor, to give another person or persons, known as your ‘attorneys’, the authority to make decisions on medical treatment and the provision of care if you lose the capacity to take those decisions yourself.
It also includes wider decisions like where you should live, what type of medical treatment you should receive and refusing or consenting to life-sustaining treatment.
The LPA takes effect once it has been registered with the Office of the Public Guardian (OPG), and if the Donor were to become mentally incapable in the future.
This is different to a Property & Financial Affairs LPA which allows an Attorney to deal with financial matters whilst the Donor is mentally capable or incapable.
Benefits of a Health & Welfare LPA?
- Keep control
There is no automatic legal right for your family or friends to make medical or care decisions on your behalf, even if they are your spouse or child.
However, by signing a Health & Welfare LPA, you can appoint someone of your choosing to make medical and care decisions for you, and so taking that power away from doctors and social workers.
- Protect your best interests
If you are unable to make medical and care decisions for yourself, your Attorney is there to act in your best interests, taking into account all that they know or you have communicated to them about your feelings, wishes and beliefs.
This could include consulting with others interested in your health and welfare.
- Avoid conflict
If there is potential for disagreement amongst family members – whether that is between your spouse and children from a previous relationship, or otherwise – then stating in advance who has the authority to make medical and care decisions for you can be extremely helpful.
This is especially so, when it is considered that in the event of disagreement. Social Services can step in and make decisions which relate to your living arrangements and medical care etc.
- Save time and money
Without a Health & Welfare LPA in place, in certain circumstances an application to the Court of Protection may be required to appoint a Deputy to make such decisions for you. This is an expensive and time-consuming process.
If the Court determines that you are not mentally capable of making decisions for yourself, then it will appoint a Deputy to act in your best interests, which could be the Local Authority. Having a Health & Welfare LPA in place avoids this situation.
- Be prepared
Planning in advance means that you will be prepared for all eventualities. By creating a legal document, you can have some certainty over your healthcare should you reach a point where you can no longer make decisions independently. Postponing making these arrangements could mean that you miss the opportunity to make your wishes known.
Your next move
Always seek professional advice. We can guide you through the LPAs, estate management and Wills.
For further information please contact Colleen Dooney, or use the contact us button below.
Find out more about our Estate Management, Wills and Probate services
