Elderly & Later-Life Law
Adult social care and care funding, safeguarding older adults, lasting powers of attorney, deputyship, and NHS continuing healthcare.
Introduction
Elderly and later-life law brings together the legal rules that matter most as people age: the right to have care needs assessed and met by the local authority, how care is paid for, protection from abuse and neglect, and planning for the possibility of losing mental capacity. The cornerstone in England is the Care Act 2014, which places a general duty on local authorities to promote individual well-being and requires them to assess anyone who appears to need care and support — regardless of their finances (Wales has its own parallel statute, the Social Services and Well-being (Wales) Act 2014). Whether the council actually pays towards care is then determined by a separate means test. Alongside social care sits the Mental Capacity Act 2005, which governs decision-making for people who lose capacity, lasting powers of attorney (LPAs) registered with the Office of the Public Guardian, and Court of Protection deputyship where no LPA was made. Health-funded care (NHS continuing healthcare) and adult safeguarding duties complete the picture.
In Brief
If an older person appears to need care and support, the council must assess their needs free of charge, whatever their finances (Care Act 2014, s.9) — but help with the cost is means-tested, and savings above the £23,250 upper capital limit mean self-funding. Plan ahead while capacity remains: registering each lasting power of attorney costs £92 and takes 8 to 10 weeks; waiting until capacity is lost means a £432 Court of Protection deputyship application plus annual supervision fees. If the person's primary need is a health need, NHS continuing healthcare can fund care in full, with no means test.
Core Principles
Well-being Duty — The general duty of a local authority, in exercising its care functions for an individual, is to promote that individual's well-being, which expressly includes personal dignity, physical and mental health, protection from abuse and neglect, and control over day-to-day life (Care Act 2014, s.1).
Right to a Needs Assessment — Where it appears that an adult may have needs for care and support, the local authority must assess whether they do and what those needs are. The duty applies regardless of the authority's view of the level of the person's needs or their financial resources, and the assessment is free (Care Act 2014, s.9).
Means-Tested Funding — Whether the council pays towards care is decided by a financial assessment (means test). A person with savings above the upper capital limit of £23,250 is not entitled to help with care costs from the council, and home ownership counts if they are moving into a care home. Deferred payment schemes can prevent a forced house sale.
Adult Safeguarding — Where a local authority has reasonable cause to suspect that an adult with care and support needs is experiencing, or is at risk of, abuse or neglect and cannot protect themselves, it must make whatever enquiries are necessary and decide what action to take. 'Abuse' expressly includes financial abuse — theft, fraud, and pressure or misuse in relation to money or property (Care Act 2014, s.42).
Presumption of Capacity — A person must be assumed to have capacity unless it is established that they lack it; they are not to be treated as unable to decide merely because they make an unwise decision; and any act done for a person lacking capacity must be in their best interests and as unrestrictive of their rights as possible (Mental Capacity Act 2005, s.1).
Lasting Powers of Attorney — A donor aged 18+ with capacity can make two types of LPA: health and welfare, and property and financial affairs. An LPA must be registered with the Office of the Public Guardian before use; a health and welfare LPA can only be used once the donor cannot make their own decisions, while a financial LPA can (with permission) be used as soon as registered.
Deputyship — If a person loses capacity without an LPA, family members must apply to the Court of Protection to be appointed deputy, paying an application fee and ongoing annual supervision fees to the OPG. Deputies act under the MCA best-interests framework (see the Court of Protection Law topic).
NHS Continuing Healthcare — Where an adult's primary need is a health need, the NHS can fund the full package of care (in a care home or the person's own home). Eligibility depends on assessed needs — their complexity, intensity and unpredictability — and not on any particular diagnosis or condition, and it is assessed by a multidisciplinary team.
Key Statutes
Leading Cases
Aintree University Hospitals NHS Foundation Trust v James
[2013] UKSC 67
R v North and East Devon Health Authority, ex p Coughlan
[2001] QB 213
R (McDonald) v Royal Borough of Kensington and Chelsea
[2011] UKSC 33
Banks v Goodfellow
(1870) LR 5 QB 549
Common Scenarios
Arranging care for an ageing parent
Contact adult social services at the parent's local council and ask for a needs assessment — it is free and anyone can ask for one. The council must assess regardless of the parent's finances (Care Act 2014, s.9). If eligible needs are found, a separate financial assessment (means test) determines what, if anything, the parent contributes.
Worried the family home must be sold to pay care home fees
If savings exceed the £23,250 upper capital limit, or the person owns their home and is moving into a care home, they will usually self-fund. A deferred payment agreement with the council lets fees be secured against the property and repaid later instead of forcing an immediate sale. NHS continuing healthcare should always be considered first: if the person's primary need is a health need, the NHS funds care in full, with no means test.
Suspected financial abuse of an elderly relative
Report concerns to the local authority's adult safeguarding team, which must make enquiries under Care Act 2014 s.42 where an adult with care needs is at risk — financial abuse (theft, fraud, pressure over money or property) is expressly included. If an attorney under an LPA is suspected of misusing funds, also report to the Office of the Public Guardian, which can investigate, and the Court of Protection can revoke the LPA.
Parent diagnosed with dementia — planning ahead
While the parent still has capacity, they can make both types of LPA (health and welfare; property and financial affairs) and register them with the OPG — £92 per LPA, taking 8 to 10 weeks. If capacity is lost with no LPA in place, the family faces a Court of Protection deputyship application (£432 fee, plus annual supervision fees), which is slower and more expensive.
Frequently Asked Questions
Does everyone have to pay for their own care?
No. The council's needs assessment is free and must be carried out regardless of your finances. Whether you pay towards the care itself depends on a financial assessment (means test): if you have savings worth more than £23,250 — the upper capital limit — you will not be entitled to help with care costs from your local council, and owning your own property counts against you if you are moving into a care home. Below that limit, the council may contribute on a sliding scale.
What is the difference between a lasting power of attorney and a deputyship?
An LPA is made in advance by a person who still has capacity: they choose their own attorneys, and registration with the Office of the Public Guardian costs £92 unless a reduction or exemption applies. A deputyship is imposed after capacity has been lost, on application to the Court of Protection — a £432 application fee, £266 more if a hearing is needed, a £100 new-deputy assessment fee, and annual supervision fees (£320 for general supervision). Making LPAs early is almost always cheaper and keeps the choice of decision-maker with the person themselves.
What is NHS continuing healthcare and who qualifies?
NHS continuing healthcare is a package of care arranged and funded solely by the NHS for adults whose primary need is a health need. It can be provided in your own home or in a care home, and it is not means-tested. Eligibility is decided by a multidisciplinary team looking at how complex, intense and unpredictable your needs are — it depends on your assessed needs, not on any particular diagnosis or condition.
What can I do if I suspect an older person is being abused or exploited?
Alert the local authority's adult safeguarding team. Under s.42 Care Act 2014, where the authority has reasonable cause to suspect that an adult with care and support needs is experiencing or at risk of abuse or neglect and cannot protect themselves, it must make whatever enquiries are necessary to decide what action should be taken. Abuse includes financial abuse — having money or property stolen, being defrauded, or being put under pressure in relation to money. In an emergency, or if a crime is in progress, contact the police.
Is Attendance Allowance means-tested?
No. Attendance Allowance — a weekly benefit for people over State Pension age who need help with personal care or supervision — is not means-tested: what you earn or how much you have in savings will not affect what you get. It is paid at two rates (£76.70 or £114.60 a week) depending on the level of help you need.
Important Deadlines
Typical Costs
Official Resources
What To Do Next
Step-by-Step Guides
Know Your Rights
Common Scenarios
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