Fair deal? Family at odds with hospital and each other not so sure

What I should do about the Fair Deal Scheme for my elderly mother? My 79-year-old mother was recently diagnosed with dementia and early onset of Alzheimer’s. She was in hospital at the time.

The bed manager phoned my brother and said they would start charging my mother for her care as the Fair Deal Scheme wasn’t in place yet to move her to a nursing home. My brother questioned this as my mam was deemed to have no mental capacity to manage her own finances. The hospital then told him he would now be liable to pay the bills because he had taken the Fair Deal scheme paperwork home.

How could someone now be legally responsible simply because they took some information they were given? He told them he was seeking legal advice as he believed the hospital was being disingenuous.

A few days later, the hospital discharged my mother to a private nursing home without informing either myself – who was listed as next of kin (I live in London) – or my brother.

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The nursing home contacted my brother to inform him that our mother had been moved there and told him she has received three months transitional funding without the Fair Deal Scheme being in place.

We have three siblings who we are struggling to engage in sorting out Fair Deal for my mother, one of whom lives in the family home, and doesn’t want to deal with the issue.

My eldest brother has been advised by a solicitor the easiest thing to do is to make my mother a ward of court and to sell the family home to pay for her care, meaning any potential inheritance is lost. Is there really no other option? Will my brother who lives there become homeless? Does that mean that my mam will now have to pay the full cost of the care home?

My mam has no savings and only a widow’s pension from An Post so we are not financially well off. Do we get no support from the HSE?

Also the nursing home is saying that someone needs to go guarantor should my mam need to go to hospital in the future. Is that so?

Ms S.C., email

* Your very stressful position highlights yet again two recurring issues for this column – the reluctance of Irish people to plan ahead for potentially negative personal outcomes, and the all-too-regular problem of getting families on to the one page when issues do arise.

I’m going to skip through the issues that have arisen with the hospital. You’ll note that I have chosen not to name it – or the nursing home.

Clearly a decision has been made, medically, that your mum does not need acute hospital care and, as I understand it, there is no issue with the hospital organising step down care in a nursing home as part of its efforts to free up beds – not least given the ongoing crisis that we are all too familiar with.

It does seem that there has been confusion on both sides. The hospital clearly assumed that, having given your brother a Fair Deal application form, it should have been actioned. Your brother appears not to have been aware of this and, anyway, it appears you are next of kin, not he.

Either way, there has clearly been a breakdown of communications between two sides, both of which are operating under stress. In any case, you are beyond that now.

Your mum is in a nursing home, funding is in place for three months and the issue is how do you fund the care going forward.

And, as I think you suspect, Fair Deal is the blindingly clear and obvious answer. I gather some of your siblings have yet to buy in to this. For the life of me, I cannot understand why.

The choices for your mum are limited. Either she applies for Fair Deal and then she pays a contribution to the cost of her care which is likely to be heavily subsidised by the HSE or she (or her family) chooses to pay what will undoubtedly be a considerably higher amount each month privately.

Alternatively, she can choose to be cared for at home.

There is a piece on the page opposite about the cost of private home care. I can tell you from experience it comes to around €30 an hour. Yes, you can apply for public health care assistance but that will likely see you join a waiting list and, even when hours are available, they will not meet what you will likely need.

It is possible to care for her yourselves at home, though that would likely be very onerous on the carers and, in any case, would require a degree of consensus you appear to be having trouble finding among your siblings.

You mum is almost 80 and her health is only likely to decline.

Nursing home

For the sake of this piece, I am going to assume the medical advice was that your mother needs nursing home care. If that’s the case, Fair Deal is a no-brainer.

That being so – and given that a son lives in the house as his only accommodation – selling the property frankly sounds like madness.

If your mum funds her nursing home care with Fair Deal, the nursing home will take 80 per cent of her income to fund the cost along with 7.5 per cent of any assets she has in excess of €36,000.

This amount will be taken each year so that, eventually, she will have no savings over €36,000.

The one exception is the family home. As long as she keeps this, the maximum the HSE can charge her is 22.5 per cent of its value – 7.5 per cent for each of the first three years of her care. Thereafter, they can place no extra charge against the home and the bill does not come due until your mum dies.

At that point the property becomes part of her estate, the bill is paid and the rest allocated according to her will, if she has one, or in line with the law of intestacy otherwise.

Either way, there is something for the family by way of inheritance and, most particularly, some prospect of your brother who lives there having means to provide for himself.

If, however, she sells the house, as you say this solicitor has advised, then the entire sum becomes part of her general assets and – above the €36,000 threshold – payable to the HSE over time without upper limit. And, in the end, depending on how long she lives, there will be no home, nowhere for your brother to live and no inheritance beyond the €36,000.

So selling the home is nuts, to use the strictly non-legal term.

Ward of court

So too, in my opinion, is making your mum a ward of court. The issue is that, in general, the person applying for Fair Deal – your mum – must authorise the process. And your mum is not in a position to do so. And because no arrangements were put in place – such as an enduring power of attorney – no-one currently has the right to speak on her behalf.

As Tom Murray of fairdealadvice.ie notes, the wardship process can take around 12 months and the legal costs involved mean it is not cheap in itself.

You don’t have 12 months. As I understand it, you have three months sufferance from the nursing home before you find yourself in a care crisis. And, as Mr Murray notes, getting a Fair Deal application process through the system from start to finish would take the whole of that time anyway.

What I would advise, and Mr Murray concurs, is that one of the siblings – probably you as next of kin or your brother who seems to have got landed with things – applies to the circuit court to be a care representative.

It is still a legal process but it is quicker than ward of court and cheaper and its purpose is specifically to facilitate the Fair Deal process.

Whoever is applying to be made care representative will need to get the approval of all the siblings, so there is certainly talking to be done but, on financial grounds, this clearly is the best course of action.

Of course, you don’t have to stay with this nursing home. You can apply for whatever nursing home suits your mum under Fair Deal, but you do need to get moving on it.

You mention the nursing home wanting someone to go guarantor on the arrangement to cover unpaid bills. Mr Murray assures me this is not something that you would expect.

The only thing that might explain it is concern at the hospital and the nursing home that the family is not facing up to the decisions that need to be made. The nursing home clearly does not want to be left out of pocket because of family squabbles over meeting the agreed cost of care.

Your family needs to understand a couple of things. First, your mum’s needs have to be primary in all this. If your mum needs nursing home care, there is a cost and it will have to be paid. Fair Deal ensures that this is done only from what she can afford herself, without landing other family members with financial commitments they might struggle to meet.

The critical issue here is that your mum is not in a position to make choices for herself. Now is the time for the family to pull together and step up to ensure she is properly cared for.

Dithering is not an answer. There was a recent High Court case where family refused to engage with a nursing home over costs of care. In the end, the person was made a ward of court over the protests of the family, and the family lost control over what was to be done and and how it was to be funded. And there were still the legal costs to pay.

Oh, one more thing. Advise your brother to talk to another solicitor.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into.

* This article was edited on October 20th