Under the Nursing Homes Support Scheme Act (2009), responsibility lies with the Health Service Executive to consider each individual application and accept it or reject it on the basis of legislative and operational guidelines.
Where a person lacks capacity, an application for State support through the Nursing Homes Support Scheme (NHSS) can still be made provided certain criteria are met.
Under the NHSS, a “specified person” may act on behalf of another person where that other person lacks capacity to, amongst other things, make applications for a care needs assessment, State Support, a review of an assessment or to appeal a decision of the HSE. A specified person can be a spouse / partner or child over 18 of the applicant. A specified person can also be a registered doctor, nurse or social worker.
A specified person has very serious obligations. The NHSS Act (section 46A) sets out the Principles with regard to specified persons. It is advisable that a specified person should read the principles in full and must understand and act in accordance with the principles. The principles include always acting in good faith and for the benefit of the person, and having regard for the other person’s individual circumstances and all other circumstances of which they are aware.
The full text of these obligations can be found at the following link: www.revisedacts.lawreform.ie/eli/2009/act/15/revised/en/html#SEC46A
.Having established the principles under which the specified person has clearly defined obligations towards the relevant person, Section 47 of the Act outlines how a specified person has authority to act on behalf of the applicant.
The full text of Section 47 can be found at the following link: www.revisedacts.lawreform.ie/eli/2009/act/15/revised/en/html#SEC47
.This means that in the absence of an Enduring Power of Attorney (EPOA) or a Decision Making Representative Order (DMRO), a person can still apply for State assistance in respect of obtaining nursing home care for a loved one. It should be noted, however, that where either EPOA or DMRO are already in place, the role and responsibilities of the specified person are invalid and will not be recognised by the HSE.
It should also be noted that in circumstances where Ancillary State Support (commonly referred to as a Nursing Home Loan) is needed, a DMRO is a requirement as the HSE will not be able to place a charge against the value of the principal private residence without a DMRO in place.
The HSE is aware of there can be delays to the DMRO process and it is important to maintain engagement with the local NHSO when encountering specific difficulties as they will be able to help applicants to successfully navigate those hurdles without impacting the application process.
Part 7 of the Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2013 stipulates that the registered provider of the nursing home must agree a contract in writing with each care recipient on their admission to the nursing home. This contract must include details of the services to be provided to that care recipient and the fees to be charged. Residents should never be charged fees which are not set out in the contract.
The full text can be found at the following link: www.irishstatutebook.ie/eli/2013/si/415/made/en/print.
Ministers, the Department of Health and the HSE are not a party to such contracts which are concluded between each care recipient and their care provider.
