The Nursing Home Support Scheme Act 2009 makes provision for a new system of financial support for those in need of long term residential care. Under the scheme, before receiving State support a financial assessment will be carried out to determine the amount that an individual will need to contribute to their care, based on 80% of their assessable income and 5% of the value of their assets per annum. The first €36,000 of assets for an individual or €72,000 for a couple will not be counted at all in the financial assessment.
Your principal residence will only be included in the financial assessment for the first three years of your time in care. This is known as the 15% or “three year” cap. It means that you will pay a 5% contribution based on your principal residence for a maximum of three years regardless of the time you spend in nursing home care. The 5% annual contribution can be deferred and collected from your Estate. This deferral is known under the legislation as ancillary State support and consists of a loan advanced by the State. In exchange, the State will register a charge against your property.
Where you do not have full capacity to make decisions then a “Care Representative” is appointed on your behalf, to make the application for the ancillary State support and to give consent to the charging order. This only applies where you have not been made a ward of Court or appointed an attorney under an enduring power of Attorney to act on your behalf. The Care Representative is appointed by the Circuit Court and the application is made to the County Registrar by way of Motion grounded on an Affidavit, exhibiting two medical reports from two separate registered medical practitioners confirming that you are of a diminished mental capacity.
The legislation sets out an order of priority in respect of whom can be appointed a Care Representative. This can be your spouse, or if they are deceased, any one of your children, but if you have more than one child then your other children have to give their consent in writing to the application.
The Motion and Affidavit will be served on you so that you are fully aware that the application is being made. A document called a Reply is also served on you and you can indicate on this document whether or not you object to the appointment. This document is then lodged in the Circuit Court Office.
It will not be necessary for you or your doctors to attend the hearing of the application before the County Registrar, if the matter is on consent. If the matter is not on consent then, the case will be transferred into the judge’s list for hearing. The County Registrar will consider carefully the medical reports from your doctors and your own views with regard to the application. If the County Registrar is satisfied that you do not have full capacity to make decisions then she will grant the order appointing the Care Representative.
The Court order gives the Care Representative the power to make the application for ancillary State support on your behalf, consenting to the creation of a charge over your property in respect of the State support and taking all necessary actions in connection with the application for the ancillary State support and in respect of the registration of the charge against your property. The order does not permit the Care Representative to make any decision or take any action on your behalf other than those authorised by the order.
After your death your Personal Representative will have the responsibility of ensuring that the State support given to you during your life time is repaid to the Health Service Executive. Once the ancillary state support has been discharged the Health Service Executive will then arrange to remove the charge from your property. The Personal Representative must ensure that the monies are paid to the Health Service Executive within 12 months of the date of death, otherwise interest is payable from the date of death.
Caroline O’ Driscoll BCL