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Lasting Powers of Attorney

17 Aug

 

Lasting Powers of Attorney

 

Following retired Senior Judge Denzil Lush’s comments regarding Lasting Powers of Attorney (http://www.bbc.co.uk/news/uk-40887323), I thought it worthwhile exploring the situation more.

 

Denzil has said that there are risks associated in appointing someone to look after your affairs, for both financial and health & welfare decisions.  He is right, there are risks, however he has said that there are issues with 1 in 8 Powers of Attorney, which means that in the vast majority of cases, families care for the loved ones with diligence and compassion.  For those unfortunate to be involved in the cases of fraud or careless decision making, it can be devastating, both financially and from the family relations perspective.

 

Denzil has also said that he would not create LPAs and would rely on the Court of Protection to appoint an attorney, if he were to become unable to manage his affairs.  What he did not discuss in his article is the cost of doing do and the time it takes.  Deputyship orders can be done in person, but they are complicated and I often see people who have tried and given up.  The legal costs for a simple application for deputyship is IRO£1,500.00+VAT plus the Court fee of £400 (total around £2,200)* and this does not include the cost of the Bond or the ongoing costs of supervision of the Deputy, which can run to thousands of pounds a year.  The result from the Court will be a supervised order covering the daily management of the donor’s financial affairs, but it is unlikely to include health & welfare decisions, as these are rarely granted.

 

If there is anything that changes in that person’s affairs, then a further order to the Court of Protection might be required for a more complicated matter.  This is likely to involve significant legal fees, including those of the Official Solicitor to represent the donor and can easily be IRO£10,000 and upwards.

 

Lasting Powers of Attorney by contrast, can have restrictions added to them for protection and cost £600+VAT plus the registration fee of £164 (total £884)*.  This cost would cover both financial and health and welfare decisions, so would cover far more than the Deputyship order in all likelihood.

 

At Nash & Co Solicitors, if the LPAs are done for people who have capacity and are not expecting to use them for a while, we will hold onto the original and release it or certified copies of it at the direct request of the donor or with evidence of loss of capacity, if this is the donor’s original instructions, to add an additional layer of protection.

 

There are risks to creating Powers of Attorney and Deputy’s can commit fraud too, although hopefully the Office of the Public Guardian would realise, but this can take a while.

 

Lasting Powers of Attorney are a great tool to allow someone to be taken care of, at a time when they really need help.

 

 

 

 

*current prices for Nash & Co Solicitors

Caring for someone with a dementia

3 Aug

 

Caring for someone with a dementia

 

There are lots of different kinds of dementia and they have slightly different presentations, but the key points about all dementias is that they are changes to the brain, that affect memory and brain function, that is deteriorating.  There can be changes in personality and the deterioration might not seem to make sense, as someone can still retain one key skill long after they have lost other key skills, it doesn’t always work that the person with dementia loses everything at a nice even pace!  And importantly, eventually it will be terminal.

 

It is useful to get a diagnosis of the kind of dementia that the person has, as it will help the carer to understand some of the changes that will happen.  Diagnosis is also a gateway to access some services, that will support both the person with dementia and/or their carer.  And making sure that the carer is supported is really important, as without the carer their life would be much more impaired and disempowered.  The carer will facilitate the best outcome that can be achieved.  In the UK dementia costs £26bn a year, the biggest part of that figure is made up of the work of unpaid carers, £11bn, and the NHS and social services make use of that unpaid care, which means supporting the carer to ensure that carers can keep going.

 

There is no cure for dementia, there is a lot of worldwide work being done currently looking at different cures, creating new drugs and repurposing existing ones and although there have been some promising initial results, I have been told that a cure is a least 10 years away, if not more.

 

Because there is no cure, the only therapies are those that keep the person in the state that they are in, but do not roll back the clock on the progression of the illness.  These drugs only work for a certain period of time, as they will not stop the underlying progression of the illness, but will maximise the cognitive abilities that they have.

 

The other therapies that are useful are the social interactions, as long as they are meaningful and there is a lot of work being done on these.  Music seems to be quite powerful to many people.  Football dementia cafés are great for football fans and here in Plymouth we are lucky enough to have a dementia café for veterans.  Elsewhere there are dementia farms, which for former farm workers is incredibly powerful that they are once again able to participate in the workings of a real farm.  When the idea was first mentioned there was concern about the risk, but the risk is managed and the participants get a lot of value from it.

 

Carers need support and respite, they need to be able to have a life of some kind away from their caring role, for an hour, a day or a week. Family carers do an amazing job to care for people with dementia and yet they are working alongside a progressing condition that is slowly taking their loved one away.  85% of carers are clinically depressed within a year of diagnosis, it is hard dealing with the condition and its progression.

 

A person with dementia can live a fulfilling life, they can be empowered to do the things that they want to for as long as they are able to.  It takes the carer and the understanding of a whole community to do it well.

 

If you need help caring for a loved one with dementia, let me know, I understand what it is like.

Do Not Resuscitate – Completing a TEP

29 Jun

Do Not Resuscitate – Completing a TEP

 

Firstly, what on earth is a TEP?  Many of us will have heard of DNR orders, but have no idea what a TEP is, it stands for Treatment Escalation Plan and is the NHS document regarding end of life and resuscitation.

 

It has 3 sections; part A looks at whether this patient is at the end of their life with a poor prognosis and starts the question “Would you be surprised if this patient died within the next 6 – 12 months?”.  When I talked to healthcare professionals about death and dying, they will often say that they cannot predict when someone is going to die.  They can try and they will often get it right or close to being right, but not always.  People can unexpectedly rally and recover and continue to live for months or years.  I had a client who was Catholic and approximately annually the priest was called in the early hours of the morning to give her last rites and asked not to wait until office hours as she wouldn’t survive until then.  She finally succumbed in the 4th year, having survived last rites 3 times!

 

The next bit of section A looks at any advanced decisions that person made and whether they have the capacity to participate or make the decision themselves and if they haven’t, it allows the doctor to decide whether or not to resuscitate in the event of cardiorespiratory arrest.  In other words, is someone going to do CPR (chest compressions and restart their heart if it stops).

 

Part B then looks at a slower less dramatic decline and considers the circumstances “If the patient is currently very unwell or in the event their condition deteriorates”.  There is a series of boxes to tick Yes/No including some that are only relevant in hospital (aka acute setting).  The 5 questions for outside of hospital are:

  • Is admission to acute hospital appropriate?
  • Are IV fluids appropriate?
  • Are antibiotics appropriate?
  • Is artificial feeding appropriate?
  • Is De-activation of Implantable Cardioverter Defibrillator (ICD) appropriate?

 

TEPs are important documents, they are life and death decisions.  They are not however written in stone and can be changed by a doctor at any point in time that circumstances change.  And when circumstances change a new TEP is completed and placed in the patients notes.  Until it is changed, the current TEP will be followed by the healthcare professionals looking after that person, including doctors, nurses and paramedics.

 

I’ve seen lots of these completed, I’ve even been part of conversations around end of life in vague non-specific terms, but I’ve yet to see a doctor complete one in full consultation with the family, so they clearly understand what a tick in each of the boxes will mean.  It does have to be completed by a doctor, it is their signature on the form, but even when there is a health and welfare attorney with authority to make decisions about life sustaining treatment, the doctor still doesn’t fully consult with the attorney, or at least I’ve never yet seen that.  This means that they can get it wrong!  Not every family member wants to discuss this in detail and if they don’t that’s fine, that’s their choice.  But they should be given the option!

 

Part C is about organ donation, so is only relevant at the time when the other decisions are all over!

 

TEPs can be scary, they deal with circumstances that family members don’t want their loved ones to be in – very poorly!  If anyone needs support in dealing with a TEP or understanding it, then let me know.  I’ve been involved in others and I understand.

 

 

 

 

 

 

 

 

 

 

 

 

Plain English

15 Jun

Plain English

 

There has been a campaign in recent years for legal advice to be in plain English and long may it continue.

 

Sometimes the complexities of a legal case or legal argument may be hard for the layperson to understand and in which case it is the role of the solicitor to explain as best they can, but so they do understand.  Some unsophisticated clients just want to know that their case is being handled in a skilled manner and don’t feel the need for a detailed explanation of the situation.

 

Any case law or arguments in legal language should be a discussion between lawyers and should not involve the client, unless they have the requisite understanding, as some sophisticated clients do.

 

Historically the language of law was constructed to ensure that lawyers were seen within society as highly skilled and educated.  The process of becoming a lawyer was intentionally hard to keep the numbers in the industry small, the skill level high and in a really historic way, the province of rich white men!!!  This historic construction of the industry meant that lawyers were well paid and usually well respected in society.  Today we are still reasonably well paid and hopefully reasonably well respected.  We are closely monitored by the Solicitors Regulation Authority and are required to have training every year to ensure that our knowledge is up to date.  It is still hard to become a solicitor and as one there are lots of outcomes we are required to follow to ensure that we at all times act in the best interests of our client.

 

Some lawyers take extra exams to distinguish themselves from other lawyers and better qualified, most lawyers I know take a huge amount of pride in their work and go to great lengths to ensure that the advice that they have been given is of excellent quality, myself included, I’ve passed my Solicitors for the Elderly (SFE) exam and my Society of Trust & Estate Practitioners (STEP) exam.  In my area of law the only other exam I can take is the Associate of Contention Trusts and Probate Specialists (ACTAPS), but as I don’t litigate, it seems fairly pointless.

 

There is a LOT less Latin in the legal language than there used to be, but still some, it must be said, which is a good thing, as I never did Latin at school!!!  The detail of some legal arguments can sometimes still be hard to follow, but that should not put off the solicitor from trying to explain it to their client in a language that their client will understand.  By using plain English we are helping the client to understand that we are on their side, that is what all the regulation of the legal industry is about, the SRA has little or no sympathy for a lawyer or law firm that has not treated the client fairly.

 

So long may it continue, long may we used plain English to demonstrate to the client that we are on their side and hopefully we will be rewarded and respected for the great quality of the work that we do.  I know that’s always what I strive very hard to do.

 

 

Acting as a Health & Welfare Attorney

1 Jun

Acting as a Health and Welfare Attorney

 

The first thing to understand about acting as a H&W attorney is that the attorney can only make decisions that the donor lacks capacity to make themselves and that is true for each big or little decision.  So a person may know that they like chocolate but not be able to make a decision about a complex medical procedure, capacity is “time and decision specific”.  This means that the donor may well be making some decisions about their life, but not others.

 

The next thing to understand is that when acting for someone who is found to lack capacity, the attorney must decide in their best interests.  That’s not just an average person’s best interests who is a bit like them, but in that one individual person’s best interests and to do that, the attorney would need to know something about them.  H&W attorneys are usually family members, so hopefully they do know something about them.

 

There is also the issue of life sustaining treatment and the donor can choose to allow the attorney to make decisions or not.  If they donor chooses that the attorney cannot make decisions, then whilst there might and should be consultation with those closest to the donor by the health care professionals looking after the donor, the final decision maker about life sustaining treatment is the health care professionals.  If the family disagree with that decision their only recourse is an application to the Court of Protection, which can be expensive, time consuming and very emotive for family members.

 

If the donor allows the attorney to make decisions about life sustaining treatment, then their decision is binding on the health care professionals, in the same way that the capacitated donor’s decision would be.

 

So apart from life sustaining treatment, what other decisions can the attorney make?  In short – any medical or social care decisions, which would include decisions about treatment, including medication and surgery.  Social care decisions such as what to wear, what to eat and who visits you.  Importantly where to live, which includes whether someone goes into care and if so, which care home they go into.

 

They attorney can request a particular kind of treatment, but it will only be offered if it is clinically appropriate, this is the same as if the donor was capacitated.  The attorney cannot demand the treatment.  The attorney can refuse clinically appropriate treatment, in the same way that the capacitated donor could, which includes things like discharging from hospital against medical advice.  However, the place that the attorney is taking the donor needs to be in that person’s best interests and if the health care professionals believe that the attorney’s decision is too risky, then instigate an application to the Court of Protection to have the attorney removed.

 

People take risks, people make unwise decisions, this is normal and happens all the time and people with a cognitive impairment should also be able to do, as far as possible, what everyone else can do.  The issue becomes the balance between the unwise choice of the attorney honouring the preferences of the donor and the risk that this will incur.

 

Acting for someone when they are unwell is always hard emotionally on those that must make those decisions and care for them.  And making decisions about life sustaining treatment is particularly hard.  For any attorney who needs help, please contact me, I would be happy to support you in this role.

 

 

Acting as a Financial Attorney

18 May

Considerations when acting as a financial attorney

 

When someone has appointed you to act for them, there are several duties that the attorney should fulfil.  The most important consideration is what is in that donor’s (the person for whom you are acting) “best interests”.

 

Firstly you must collate all the information, so that you can understand the situation.  How can you manage someone’s financial affairs when you don’t know what assets and liabilities they have?  The next thing is to work out how to manage those affairs going forward to get the best result for that person, whilst taking into account what they have done in the past.

 

So in the past they may have ethically invested and as long as this investment strategy is still going to provide a reasonable return, then that should continue.  However if that person gave away a big proportion of their income each month to someone who should be more financially independent, then continuing with this strategy is not appropriate.  The donor’s money is for them first, not anyone else.  The only extension to that is other people to whom they have an obligation to provide for, such as minor children.  That doesn’t mean that the donor cannot give gifts of any kind, but the gifts need to be for birthdays / Christmas / marriage etc, which is otherwise known as “on occasion”!  Importantly gifts need to be appropriate to the size of the estate.  It is considered to be in the best interests of the donor that their friends and family “remember them fondly”, but clearly within reasonable limits.  There can at times be a conflict of interest between the donor and attorney, if they are spouses or parent and child, because the more spent on care, means the less the attorney will inherit!  The money remains the donor’s, so the best interests of the donor, not the ultimate beneficiary is what is of paramount importance.

 

The next thing to ensure is that the donor is as well cared for and comfortable as can reasonably be managed, but clearly some of these decisions involve “caring” decisions, which are beyond the authority of the financial attorney, nevertheless whatever care is decided upon has to be paid for, which the attorney has the authority to deal with.

 

All the time, circumstances change, so for example on admission to a care home, that home might be able to meet that person’s needs, but 3 months later after a major deterioration, they may no longer be able to do so, in which case a new placement must be found.

 

Acting as an attorney can often be a lonely, difficult and thankless task.  If you are an attorney and you need help, please contact me, I will be happy to assist you.

Caring for a dying relative

4 May

A coffin with a flower arrangement in a morgue

Caring for a dying relative

 

This is a very hard subject.  We don’t like to think about ourselves or our loved ones dying, but it is nevertheless an important subject.

 

If our loved one dies instantly, it is a huge shock, especially if we have not been expecting it.  If you have not had a conversation, then the next stage is commonly a state of shock before you can move into a more active mode of sorting out the arrangements.  This state of shock can last varying amounts of time, we are all different and how we deal with grief is different.

 

The death needs to be registered, the funeral arranged and then afterwards the estate can start to be sorted out.

 

If our loved one dies fairly quickly, this may give us an opportunity to say goodbye, to thank them for being in our lives and to let them know that they can go, if that is the right thing to say to them.  Saying thank you and goodbye is something we do for us, for them too of course, but letting them know that it is OK to go is something we do for them and a bit for us.  How we do that and whether we can do that will be different, sometimes we are not ready to let our loved ones go, especially if they are still young and we think that they have not finished their lives.  We can then have a little time to process the situation and try to emotionally deal with it.  And we cling to hope.

 

If our loved one dyes a lingering death, then we have that time to say thank you and goodbye and assure them that it is OK to go (assuming that it is).  We are upset and then process how we feel about it, however we cannot live on the adrenalin that this heightened state of anxiety will give us, so we get slightly used to it.  During this period of waiting, our loved one might rally, so we are given hope, perhaps only a glimmer or maybe a shining light, but we have hope.  And then they deteriorate and our hope dies.  If they have a fluctuating presentation, we can cycle through these emotions of despair and hope and we start living slightly on edge all the time, just waiting and not knowing.  This is very hard to watch as we see our loved one slowly slip away.

 

What happens if our loved one experiences a painful death?  Pain is something most of us fear.  We often wish we could trade places with a loved one in pain, but we can’t.  We can hold their hand, talk to them, feed them, play them music and lots of other things to try to comfort them and us, but we cannot take their pain.  Pain can be managed with drugs, but often it cannot be eliminated, watching a loved one in pain, whether or not they are dying is a horrible experience for both them and us.  I have been involved with many families when they are dealing with a loved one dying and a “peaceful” death is preferable, even though the death is often dreaded.

 

There is a finality with death, our relationship is forever changed, we can still love them, just not in person.  Death may be the time we stop and grieve, but if we are involved in sorting out their affairs, we may keep ourselves busy with that and not grieve and it is only when that is over that we do finally stop and grieve, which can come as a huge shock to anyone not expecting it, particularly since the death was some time before.  Greif takes time, but we can get over it and move on with our lives.

 

If during any of these stages we need help, friends and family may be around, but if we are faced with administration, legal or advocacy issues, I am here to help.  And I understand.