Fair Deal Advice Blog

What to do if applying for the Fair Deal and the Applicant has lost capacity

Following the introduction of the Assisted Decision Making (Capacity) Act 2015 in late April of this year, how you deal with an Applicant who has lost capacity applying for the Fair Deal has changed.

The fact that the act has taken 8 years to come into law one would have thought that there would have been more consideration in particular with regards to the Fair Deal/ Nursing Home Support Scheme which unfortunately there clearly was not.

Up to the Act becoming law if an applicant for the Fair Deal who required the Nursing Home loan had lost capacity a Care Representative Order could be applied for to the Courts which allowed the appointed Representative to sign the loan application and consent to place a charge on the applicant’s home. This CRO could be applied for by the applicant’s family member, or they could ask a Solicitor to apply on their behalf. This was a straightforward system to use, and it worked for those applicants who had lost capacity and did not have an Enduring Power of Attorney in place.

With the new Act the Care Representative Order has been abolished and has been replaced by a Decision-Making Representative Order which has to be applied for online to the Courts. Apparently, the process is so easy that a family member can apply for it. I am being sarcastic, as from my clients’ experiences to date this is far from easy as many legal terms are used. Solicitors are currently being trained on the Act so not all will be able to help you. Hopefully it will get easier in time.

The other major change arising from the act which forced the HSE to change its application for the Nursing Home Support Scheme for the first time since 2009 is that a brother or sister or friend of an applicant can no longer sign the application on their behalf (previously they could). This is because they are no longer deemed important enough under the act and are not listed as Specified Persons!

A Specified Person is now:

1. • Your spouse or partner
2. • Your child if over 18 years old
3. • A registered medical practitioner
4. • A register nurses.
5. • A registered social worker

How no’s 3 to 5 are more important than a brother or Sister or a friend I cannot understand. Not everyone has a child or a spouse and their closest relative who most likely from our experience will be looking after them, will be their brother’s and Sisters and they are not deemed important enough to sign a form. They now have to go and get an already overburdened Doctor to sign the application or a nurse or social worker who may not even know the individual. Somebody really has not taught this out.

As I stated earlier the HSE had to issue a new application form to take account of the new Act and to make sure the form was compliant with it as the old one did allow brother’s and sisters and even friends to submit applications for the Fair Deal on behalf of the applicant.

In their wisdom the new application form has increased in size from 22 pages to 36 pages. One has to read 12 pages of information before one has the opportunity to fill in your name. This form is frightening applicants and their families just by its size alone. The good news is that most people will only have to fill in pages 13 to 24 or if the loan is required pages 25-27 as well.

So, if you need any help applying for the Fair Deal, please contact us on advice@fairdealadvice.ie or call 086 6015042 we are here to help and advise you.