Heritage Estate Planning Blog

Who makes decisions about your care and treatment if you can’t?

I come across a lot of people who think that if they were to ever lose mental capacity, their next of kin would be able to make all the important decisions and I really wanted to write this article because that thinking isn’t correct. 
When you are a minor, the person who has parental responsibility is legally bound to make decisons about your care and treatment. Once you reach the magic age of 18 and become an adult, unless you have a legal document in place, if you were to lose mental capacity due to an accident or illness, nobody can make decisions about your care and treatment. This leaves your family and those close to you feeling helpless and causes a lot of distress – we often receive calls from family members wanting advice on what they can do when their loved one has already lost mental capacity. 
So what happens if you lose mental capacity and have not drawn up and registered a Lasting Power of Attorney? Well firstly, there are two types of LPA; one that deals with your property and financial affairs and one that deals with decisions relating to your health and welfare. Both are very important but I am focussing on health and welfare for the purpose of today. The reason being that the majority of people who do make their LPAs, unless they have taken advice from somebody like me, only draw up the LPA for Property and Financial Affairs. There are many reasons for this but the main one I come across is there is still this belief that family will be able to make the decisions and as long as the LPAfor Finance is in place, it will be ok. When I reviewed my mum’s paperwork a few months ago, I was shocked to learn that when she went to see a solicitor to draw up her will and LPA, the solicitor did not even mention the Health & Welfare LPA – so my mum was unaware that this document was available until I spoke to her about it. I’m relieved to say she now has this in place! 
If you lose mental capacity and do not have an LPA for Health & Welfare (and this is the first question medical staff, social services and private care homes will ask) those people who love you and know you best will not be able to decide how and where you receive care. They will also not be able to make decisions about life sustaining treatment, if you are being given it. So many people I speak to have very strong views on life sustaining treatment and their family know how they feel about being ‘kept alive’ but that knowledge without the legal document in place is worthless.  
The only option your family will have is for one of them to apply to the Court of Protection (COP) to become your Deputy. This process is lengthy and costly as it will involve court fees. Often the COP are reluctant to issue Deputyship for Health and Welfare as it is more subjective than financial affairs and harder to audit. A lengthy and costly process, taking many months, is not a great prospect for family who will be upset and stressed. 
The Health & Welfare LPA gives you a voice if you don’t have a voice. The people you trust will be able to consent to or decline medical treatment and examinations, choose the type of place you receive your care, make decisions on the food you eat, the clothes you wear, the exercise and leisure you enjoy and can complain about any aspect of care you receive. 
Drawing up a Lasting Power of Attorney is straightforward – it is essential that you only appoint people that you wholeheartedly trust and it is also very important to discuss your thoughts and feelings about your health and wellbeing in advance of them ever needing to make decisions for you. That way, you can be reassured that they will be making the decisions you would have made if you were able to. You can go onto the website for the Office of the Public Guardian (https://www.gov.uk/government/organisations/office-of-the-public-guardian) and submit your form on line (or print and post) if you feel confident that you do not need to take any professional advice. There is a registration fee of £82 per document. Alternatively, you can speak to a professional who can give you advice and guidance on selecting Attorneys, how they will act for you, any preferences or instructions you may want documented and can act as your Certificate Provider (The person who confirms you have mental capacity and are not being coerced). 
The important thing is to appoint the people you trust most to make decisions for you and get your LPAs drawn up and registered as you never know when/if they may be needed until it’s too late. 

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