Adult & Cultural Services Setting up a trust Improving the health and well-being of adults Improving the health and well-being of adults About this booklet This booklet is for families, friends and other people interested in setting up a trust to act on behalf of someone who uses adult social care services. It describes what a trust is, how to set one up and operate it. This is a new booklet and we would like your views on it. There is a reply paid tear off card at the back of this booklet for you to tell us what you think of it. 1 Adult Social Care Why set up a trust? Cumbria County Council’s Adult Social Care services are committed to offering service users greater choice and control over the services and support they receive. One way we have been achieving this over the last few years is through the use of ‘direct payments’. We are now introducing a new system called ‘self directed support’ for all our service users. This enables people to plan their own support in the knowledge of the amount of funding that could be made available to pay for this. Self directed support offers a number of ways in which money can be used to arrange the support needed. Direct payments enable people to receive money and arrange their own support. However, some people may find dealing with direct payments difficult. For these people, another option is for these payments (actually indirect payments) to be made to a ‘trust’ who act on behalf of the service user. 2 Improving the health and well-being of adults What is a trust? A trust is a group of at least three people (the ‘trustees’) who will act on behalf of, and in the best interests of a service user. In many cases, they may receive and manage direct payments on behalf of the service user, but trusts can be set up which do not handle these finances. The trustees will have signed a ‘trust deed’ and a ‘trust constitution’. The trust deed defines the legal duties and responsibilities of the trustees. Signing the deed means they are bound by the terms contained in the deed as well as existing trust law. Once set up, the trust will receive funds from Cumbria County Council and possibly other sources such as the ‘Independent Living Fund’. This money they receive becomes the ‘trust fund’. There is a financial relationship between trustees and service user. The trustees must follow the terms of deed. They would have to repay to the service user any losses incurred if they were to breach the trust. 3 Adult Social Care Who should the trustees be? The trustees can be family members, wider contacts such as friends and neighbours and other people who know the service user well. Often, trusts are made up of family members but it is important that at least one trust member is drawn from a wider circle of contacts such as neighbours, friends and others. The service user cannot be one of the trustees nor can an employee of a provider contracted by the trust to provide services. There should be at least three trustees. If the number of trustees drops to two, at least one more will need to be appointed. The trustees must act and make decisions in the best interests of the service user. The service user should be at the centre of the trust’s work and should be consulted about decisions where possible. There is guidance available from the Mental Capacity Act about how to decide what is in someone’s ‘best interests’. Ask your social worker if you would like to more about this. Trustees should note that while the trust is a straightforward legal mechanism, it creates legal obligations on them. Trustees would not be paid but they may be able to be reimbursed for expenses if provision for this is included in the deed. Any provision for expenses should be proportionate to the value of the payments being received. 4 Improving the health and well-being of adults How is the trust set up? Once the trustees are identified, a bank account should be set up in the trust’s name. The trustees will then need to produce two documents: 1 The trust deed - this is a written agreement in which the trustees make a commitment to carry out certain duties. 2 The trust constitution - this defines the aims of the trust, how it will be run and who does what. Guidance in the form of a sample deed and constitution are included at the end of booklet. This is just a guide and it is important that the deed and constitution reflect the individual needs of the service user. The trustees may wish to seek legal advice. This is not essential but may be useful. Legal advice can explain to trustees their legal obligations and can make sure the deed covers any possible problems. Trustees may also wish to seek legal advice if the direct payments being handled are large. It is possible that the cost of setting up a trust could be met from a service user’s direct payments. This would need to be detailed in the user’s support plan which would be agreed by the social worker. For more information on this, see our booklet ‘Your support plan’. 5 Adult Social Care Once the deed and constitution are ready, all the trustees must sign both documents in the presence of an independent witness. Copies of the documents should then be sent to the Direct Payments Administrator at your local Adult Social Care office. Once these are approved, the Administrator will send the trustees copies of direct payments paperwork which they will all need to sign. There is no need to inform the Inland Revenue if the trust will not generate any income. 6 Improving the health and well-being of adults What will the trustees do? Once the trust deed and constitution are signed and agreed and direct payments are set up, the trustees must put the support plan as agreed with the social worker into action. The trustees will be expected to carry out the tasks set out in the constitution. This will involve arranging care and support through service providers and/or recruiting and employing support staff. It will also involve holding regular meetings and managing the trust bank account. The trustees must follow the legislation and guidance from Adult Social Care on how to manage and use direct payments. If we do not think the payments are being used properly, we have a duty to intervene and in some cases discontinue payments. 7 Adult Social Care Checklist Setting up a trust will involve the following steps: 1. Assessment of need by social worker 2. The social worker identifies how much funding could be made available to arrange support 3. Support plan produced (see our booklet ‘Your support plan’) 4. Support plan agreed by social worker 5. Direct payments confirmed 6. Identify trustees 7. Set up trust bank account 8. Draw up trust deed and constitution 9. Seek legal advice if necessary 10. Trustees sign deed and constitution with independent witness 11. Trustees send signed deed and constitution to Adult Social Care for approval 12. Trustees sign direct payments paperwork 13. Direct payments made to bank account 14. Trustees arrange care and support 15. Trustees meet regularly to review care and support and financial arrangements. 16. Trustees meet regularly with social worker to review support plan. 8 Improving the health and well-being of adults Where can I get more information? The service user’s social worker will be able to provide you with information and put you in contact with Direct Payment Administrators in Adult Social Care. For more information on direct payments and how they work, see our booklet ‘Direct Payments - Your care, your choice’. The Direct Payment Advice and Support Service are funded by Adult Social Care to provide advice and support to people wanting to receive direct payments. To speak to an Adviser or to obtain more information about Direct Payments call 0845 1249300 or email email@example.com. Internet: www.cumbria.gov.uk/adultsocialcare/services/directpayments.asp www.cumbria.gov.uk/adultsocialcare/ict/ www.carlisledisability.org.uk/18803.html www.in-control.org.uk www.supportplanning.org www.helensandersonassociates.co.uk 9 Adult Social Care How do I contact Adult Social Care? You can contact Adult Social Care, through Customer Services at the following local offices: Carlisle Eden Civic Centre Friargate Rickergate Penrith Carlisle CA3 8QG CA11 7NX Telephone 01228 227000 Telephone 01768 242242 firstname.lastname@example.org email@example.com Allerdale Copeland New Oxford Street Somerset House Workington Duke Street CA14 2LW Whitehaven CA28 7SQ Telephone 01900 706325 Telephone 01946 852852 firstname.lastname@example.org email@example.com South Lakeland Barrow-in-Furness County Offices Market Street Kendal LA9 4RQ Barrow-in-Furness LA14 2LH Telephone 01539 713377 Telephone 01229 407894 firstname.lastname@example.org email@example.com For emergencies outside office hours, at the weekend or during bank holidays, the Out of Hours Service can be contacted on 01228 526690. 10 Improving the health and well-being of adults Sample deed (Please note: the notes provided in italics are to help the trustees develop the deed and would not be part of the final document.) This declaration of trust is made the day of 20 By And And Hereinafter together to be called ‘The Trustees’. The Trustees wish to provide care and support for (name) of (address) (“The Beneficiary”) who has a disability, by means of a Direct Payment under the Health and Social Care Act 2001. For the sole purpose of the Direct Payments, an account has been opened at (“The Account”), under the name of Trust. 11 Adult Social Care Sample deed Further sums will be credited to the Account by various agencies and institutions and in particular by Cumbria County Council and the Independent Living Fund. The money in the Account and any accretions to it, are thereinafter called ‘The Trust Fund’. The Trustees wish to declare the trusts on which they hold the Trust Fund and the income thereof. (This will entitle the Beneficiary to retain any interest that accumulates and means that the Trustees accept responsibility for the money that is held in the Trust Fund.) 12 Improving the health and well-being of adults Sample deed This deed witnesses as follows: 1. The Trustees, from the date of this deed, shall hold the Trust Fund and the income from it upon trust for the care and support of 2. The Trustees shall be entitled to employ, hire, engage, dismiss and pay out of the Trust Fund persons and carers to provide support and assistance to the Beneficiary and/or to contract with a suitable agency for the provision of support and care services for the benefit of the Beneficiary by a Direct Payment Scheme. 3. The Trustees shall hold the Trust Fund for the purpose, as set out in clause 1. until such time as ceases to live independently, or dies, whichever occurs first. 4. The Trustees, or the survivor of them, shall have the power to appoint a new Trustee or Trustees. 5. The remaining Trustees will appoint an additional member if the number of Trustees falls below three. If the number of Trustees falls below two, immediate steps will be taken to appoint a new Trustee so that there is a minimum of two Trustees at any time. 13 Adult Social Care Sample deed 6. The Trustees shall not be entitled to invest any of the Trust Fund. However, interest earning current accounts can be used. 7. The Trustees shall not be entitled to be remunerated for acting in their capacity as Trustee. Their role is purely voluntary. They shall however, be entitled to be reimbursed for the expenses which they reasonably incur in the performance of their duties as Trustees, as stipulated in the Constitution, which is to be amended from time to time. 8. A Trustee shall be entitled to exoneration and indemnity from the Trust Fund for any liability loss or expense incurred under this deed or for any judgement other than arising out of his or her own wilful and individual fraud wrongdoing or neglect. (This means that if the Trustees are sued because the Trust Fund becomes liable for something e.g. employment claim, damage to property etc., the Trustees should be able to recover any financial loss from the trust Fund.) Each trustee will be personally liable for the misappropriation of any part of the Trust Fund for which he/she is solely or jointly responsible. 14 Improving the health and well-being of adults Sample deed IN WITNESS where the parties hereunto set their hands as a Deed the day and year first before written. (This is a standard phrase that must be used.) SIGNED as a deed by the Said (name) In the presence of (name of witness) SIGNED as a deed by the Said (name) In the presence of (name of witness) SIGNED as a deed by the Said (name) In the presence of (name of witness) 15 Adult Social Care Sample Constitution (Please note: the notes provided in italics are to help the trustees develop the constitution and would not be part of the final document.) The purposes of this Group of Trustees are: • To solely serve the need and wishes of • That each member will make a personal commitment to and establish and maintain a relationship with him/her. • To actively and sensitively advocate as necessary for in different aspects of his/her life. (These are just examples of areas that can be covered, and it is up to each group of trustees to decide what should be included.) 16 Improving the health and well-being of adults Sample Constitution • The funds administered by the Group of Trustees will be used solely for the purposes set out in the support plan that has been drawn up for • The Trustees and Beneficiary will meet regularly to review the care that has been arranged for and adjust it as necessary. • The Trustees will take responsibility for recruiting and supervising carers, and ensuring that is happy with the care that is being provided. • Individual tasks, e.g. supervision, writing cheques and completing monitoring forms may be delegated to one Trustee, but they will remain accountable to the other Trustees at all times. 17 Adult Social Care Sample Constitution Membership • There are to be three Trustees appointed at any one time. • If one Trustee wishes to resign, they shall give no less than weeks notice. • If one Trustee does resign, the remaining Trustees will appoint an additional member if the number of Trustees falls below three, if the number of Trustees falls below two, immediate steps will be taken to appoint a new Trustee so that there is a minimum if two Trustees at any time. 18 Improving the health and well-being of adults Sample Constitution Meetings • There shall be a meeting held with all/at least two Trustees every weeks / months. • The meetings shall be chaired on a rotating basis. • For a decision to be made, there must be not less than two Trustees present. (It may be advisable for all Trustees to be present) • Once a new Trustee has been appointed, there shall be a meeting to reassess the duties of each of the Trustees to consider which duties the new Trustee is best suited to. Duties of trustees • (Trustees could have their own duties e.g. - one is responsible for looking after the cash; one is responsible for keeping records/minutes of meetings; supervising/hiring staff and so on) • (Each Trustee’s duties should be listed to avoid problems later on.) 19 Adult Social Care Sample Constitution Expenses • (The amount of expenses which the Trustees are entitled to should be agreed from the outset e.g. xx pence per mile for petrol, xx pence per minute for each phone call made. These expenses should be proportionate to the value of the direct payments.) All trustees should sign the Constitution. Name Signed Name Signed Name Signed 20 If you require this document in another format (e.g. CD, audio cassette, Braille or large type) or in another language please telephone 01228 606060. Bf¢e k¢c HC abÉ Bfe¡l ¢e Sl i¡o¡u f a Q¡e a¡q m Ae¤NËq L l 01228 606060 eð l V¢m g¡e Ll¦ez 01228 606060 Jeigu nor tum te gauti ši informacij savo kalba, skambinkite telefonu 01228 606060 W celu uzyskania informacji w Pa stwa j zyku prosz zatelefonowa pod numer 01228 606060 10041 Design Cumbria County Council 3cStudio Tel: 01228 221731 / 221727 Se quiser aceder a esta informação na sua língua, telefone para o 01228 606060 Bu bilgiyi kendi dilinizde görmek istiyorsanz lütfen 01228 606060 numaral telefonu araynz September 2008 2 BUSINESS REPLY SERVICE Licence No CE77 Public Information Manager Adult Social Care Cumbria County Council County Offices Kendal LA9 4BR Adult Social Care Tell us what you think about this booklet This trusts booklet is a new one and we’d like to hear from people who have read it. Please take a few minutes to fill in this tear off form to tell us what you think. How useful did you find the booklet? Useful OK Not useful How easy was the booklet to understand? Easy to OK Not understandable understand Do you have any other comments or suggestions about the information we make available? Please tear off this form from the booklet and post it back to us. There is no need for a stamp. Thank you for your help.
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