Partner and Head of Wills & Estate Planning at Andrew & Co Solicitors Helen Newson writes...
Health & Welfare
The issues of planning for later life and end of life care are headline news at present. Cases have been well publicised which involve decisions of the Court of Protection, which is called upon to make decisions on behalf of mentally incapacitated people, which can cover their financial affairs, but also what medical treatment they should receive, if they are unable to make that decision themselves. The present debate in the House of Lords about what is commonly termed “assisted suicide” by its very nature polarises opinion, and has been heavily reported.
It has been possible since the mid 1980s to plan for how one’s finances should be managed later in life in the event of incapacity, by way of what was an Enduring Power of Attorney. The law changed in 2007 when the Mental Capacity Act brought in Lasting Powers of Attorney (LPAs) which deal with the same set of decisions. However, at the same time, LPAs were brought in that could cover health and welfare decisions, and so it was possible for the first time, to enable someone of your choice to make a decision on your behalf about medical treatment, and the like, if you become too unwell to make that decision yourself.
The number of Health and Welfare powers being registsered is far less than those designed to cover a person’s finances, however, they are growing in number and it is fair to say that their numbers will increase. A House of Lords Select Committee recently recommended that there should be a heightened awareness of the Mental Capacity Act amongst health and social care professionals, and as such, the Government proposes that powers of attorney in particular should be promoted.
One of the reasons we find in practice that Health and Welfare powers are less common, is that in most cases, health and social care professionals involve a person’s nearest and dearest in decisions in any event. Indeed, it is now a matter of law that they should be. A recent Health Service Ombudman’s decision quoted that “public services must as a matter of law involve families and carers in making life changing decisions for vulnerable people”.
However, this does not always happen, and so having a Health and Welfare power in place will assist families where decisions have to be made, in particular if there is any disagreement about a person’s care.
With regard to end of life decisions, it has always been possible to make what is commonly known as a living will, or advance decision, whereby you can specify that in certain circumstances you refuse life sustaining treatment if there is no prospect of recover. It remains possible to create a living will, although if a subsequent Health and Welfare LPA is prepared, the terms of this take precedence.
As solicitors we have always been involved in advising clients about how to structure their finances for various planning reasons, one of which being later life. More and more nowadays we are asked for advice about how to plan for other aspects of incapacity such as healthcare decisions, how the system as to care funding works, and so on. Therefore, aswell as our regular clarion call to everyone who doesn’t already have a will to make one, we do urge everyone to consider a Lasting Power of Attorney to cover a whole range of decisions that may need to be taken on your behalf later in life.
For more information contact Helen Newson, Partner in our Private Client team – 01522 781465.