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Lasting Powers of attorney – practical issues – Property and Financial Affairs

15 Feb

Lasting Powers of Attorney – some practical issues

 

There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions.  In this blog, I’m going to give some practical examples of how the financial one works.

 

It can work, if you are well, but have a physical impairment and cannot get to the bank to deal with your financial affairs, at this time, your attorneys should act on your instructions only.  They are effectively doing your running around.

 

If and when you ever lose capacity, your attorney will act for you, but they make your decisions, so it is important that you trust them.

 

Unless restricted, the LPA will cover everything you own, which includes all those lovely sentimental things that you own, as well as your cash and house.  Make sure your attorney knows your intentions for all of it, the sentimental stuff is where people often row!

 

So what if you don’t have an LPA, well if you can’t get to your money, then unless you’ve made arrangements no-one can, so your bills won’t get paid.  If you live at home, your repairs or new equipment can’t be purchased, which will impair your ability to successfully live at home.  If you are in a care home, then your fees won’t get paid and the home will not want you there.  Often the Local Authority will step in on an interim basis to meet your fees in the short term, but they will want reimbursement and if necessary will take on deputyship themselves (which is like a power of attorney, but granted by the Court of Protection), which is a far more expensive option.

 

So what can your attorney do with your money?  It is meant to be used for your benefit, so making modest gifts probably is for your benefit, if you have always made them, you could appear ungenerous if you stopped giving Christmas and birthday presents.  However the power to make gifts is very limited, it must be “on occasion”, such as birthday, Christmas, wedding etc and it must be reasonable in all the circumstances, including the size of the estate, which means that the attorney cannot give themselves thousands of pounds just because they fancy it! Or at least they shouldn’t, which is why you should trust your attorneys.

 

They can spend the money on you, on your needs, to ensure that you are housed, clothed, fed and cared for.  And beyond these basic needs, depending on how much money you have, they may also buy for you some luxuries that you like, such as a holiday, if you are capable of travel.  Whatever they spend your money on, it should be with you in mind, not just what a generic person like you would want.  Some people love chocolate, others are allergic, so whatever your guilty pleasure is, if you have enough money for it and there is no clinical reason why you can’t have it, your attorney should purchase this for you!

 

If you have any questions about LPAs, please contact me.

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Disability

18 Jan

Disability

 

I’ve looked at the World Health Organisation statistics on disability and whilst they are global, it is relevant to us here in the UK, so here goes:

 

There are over a billion people living with disability, that’s 15% of the global population.

 

Disability disproportionally affects vulnerable populations, such as women, children, the elderly and adults who are poor.

 

People with disabilities often do not receive needed healthcare! Whilst this might be more relevant to the global population, here in the UK, disabled people are still badly treated, which is demonstrated through various whistleblowing scandals and as we have NICE guidelines, which effectively rations healthcare, disabled people might not get all the treatment they need.

 

Children with disabilities are less likely to attend school than non-disabled children.  In the UK, school is compulsory and non disabled children tend to be taught to their ability and can be put in “streams” or have access to grammar school.  Disabled children can attend mainstream school, but can be more at risk of bullying.  When disabled children attend special needs schools, there are higher staff ratios, these schools are for more profoundly disabled children and teaching to their ability can be difficult, when it is hard to work out what their ability is.  So this global statistic has relevance in the UK.

 

People with disabilities are more likely than non disabled people to be unemployed.  In England & Wales, we have the Equality Act 2010, which incorporated the Disability Discrimination Act 1995, which gives disabled people the legal right to expect “reasonable adjustments” to be made for them, but the recent post legislative scrutiny of the Equality Act by the House of Lords indicated that there is still a lot of work to be done.

 

People with disabilities are vulnerable to poverty.  This links with the statistic above, if a person cannot get work, it is harder to lift themselves out of poverty.  They might start a business, but without ever having experienced work, it can be more difficult to make the connections for a successful business.

 

Rehabilitation helps maximise function and support independence.  With the NHS, we are fortunate in the UK to have access to rehabilitation.

 

People with disabilities can live and participate in the community.  Normalising “difference” is really important to the experience of people living in the community and the Dementia Friends social awareness movement is a good example of normalising disability.  The knock on effect of empathy to one condition, is it often leads to acceptance of other “differences”.

 

Disability barriers can be overcome.  All new building projects should be designed with good access in mind, which not only includes things like ramps for people with physical health impairments, but with a view to other disabilities, including hidden disabilities.

 

The Convention of Rights of Persons with Disabilities promotes, protects and ensures the human rights of all people with disabilities.  This is a concept about which I am passionate, people are people first, they are not just their disability, there is always more to them than that and if/when they are seen as people with dealing with the burden of their disability, the compassion to made adjustments or support them can progress.

 

#EveryLifeHasEqualValue

Withdrawal of Life Sustaining Treatment

4 Jan

 

Withdrawal of Life Sustaining Treatment

 

There have been a couple of cases coming to Court recently regarding the withdrawal of life sustaining treatment.  Court cases are always stressful and can be very expensive, so in recent cases, the question has been asked as to whether it is necessary to go to Court in every case.  These kinds of cases arise where there is no attorney under a Lasting Power of Attorney, appointed to make decisions about life sustaining treatment.

 

There is practise direction (legal guidance for the Court process), that indicates that it should, however this practise direction is being withdrawn in December and not replaced, which effectively means it’s being deleted!

 

The Court considered lots of things and made it clear that every decision to withdraw life sustaining treatment is always unique and case specific.  They also said that every person is entitled to the rights under the European Human Rights Convention and in particular they are entitled to Article 2 (right to life) and Article 6 (right to a fair trial).

 

One of the first cases of its kind was the case of Anthony Bland, who survived the Hillsborough disaster, but in a permanently vegetative state.  The NHS Trust caring for him applied to the Court for permission to withdraw life sustaining treatment in 1993, the order was granted, as it was decided in the circumstances it was in his best interests to do so.  At that time, the Court’s view was that all such cases should be considered by the Court.  As time has gone on and medical advances have improved, there are more very poorly people being kept artificially alive with the use of medicine and in particular artificial nutrition and hydration.

 

So what has the Court decided?

 

It is still an individual decision relevant to the circumstances of each case.  However the Court has also decided that it is not always necessary to apply to the Court for a decision to withdraw life sustaining treatment where all parties are in agreement, including the family and all clinical team treating the patient.  They must be sure that there is no prospect of recovery and that it is in their best interests to withdraw the treatment.  They should also attempt to find out what their wishes would have been, had they been able to express them.  There should also be no doubts or concerns about the decision, otherwise, the case should be brought to Court.

 

So what does this mean?

 

That life sustaining treatment might be withdrawn without having to go to Court, as long as there are no concerns about the decision and everyone is in agreement.  However these recent cases are not guarantees that the matter will not be brought to Court, just that it might not be!

 

The other key point is that it is best practise, a lot easier and less stressful to grant a Lasting Power of Attorney for Health and Welfare, appointing someone you trust, who would be able to make this decision on your behalf.  One of the cases was for a 52 year old man, who had a cardiac arrest, it was not possible to resuscitate him for 10 minutes, leading to permanent brain damage and he would need care for the rest of his life.  As long as your proposed attorneys are over the age of 18, there is no time when it is too early to do this, then they can be stored until or if they are every needed.

 

If you need help or advice regarding LPAs, please contact me.

Best Interests Meetings

23 Nov

 

Best Interests Meeting

 

These meetings take place when someone is receiving treatment and there needs to be a discussion about how they will be cared for in the future, when they are cognitively impaired and cannot make that decision for themselves and there is no attorney who directs what happens, as the person has not created Lasting Powers of Attorney.  They can either be a multi-disciplinary discussion as the case in complex and it is easier to decide what should happen going forward when everyone is in one room and there can be a full and frank conversation about that person’s various and complex needs.  Additionally and alternatively they can take place where there is a dispute about how someone should be cared for, particularly if that dispute is with the family.

 

These meetings are aimed at being constructive rather than too formal, but where there is a minute taker and a room full of health professionals from various disciplines, they are very intimidating.

 

Families know their loved one well, they know what they would want and have a good idea about how they will react to certain situations, however they are usually not healthcare professionals and can struggle to feel that they have been heard.  These meetings take place around a highly stressful situation, when a loved one is unwell, that’s enough stress to deal with on its own, then adding what is perceived to be an intimidating meeting can often be too much to be able to sit rationally and articulately and be understood.

 

The purpose of the meeting is to make a decision in that person’s best interests.  In accordance with the House of Lords post legislative scrutiny of the Mental Capacity Act 2005, which was published in 2014, the Lords said that in general health professionals are paternalistic and social services are risk averse.  This makes it hard for families to assert that their loved one would prefer an outcome that involved more risk that the health care professionals are comfortable with.

 

I have supported many families in these kinds of meetings, to ensure that they feel that they have been heard and are supported so that they don’t feel quite so alone and do not understand the process that they are involved in.  If you need any help with this, please contact me.

Dying and Bereavement

26 Oct

 

Dying and bereavement

 

When a family member is terminally ill, everyone deals with that information in different ways, that includes the person themselves.  The Kubler-Ross model has 5 stages: Denial, Anger, Bargaining, Depression and finally Acceptance.  These stages can work for all parties involved.

 

Family members can therefore choose to be very involved or not at all and this difference of grieving process has an impact on family relations, at an already difficult time.

 

Some people are afraid of dying and don’t want to do it alone, they will hang onto life for as long as they can.  Others accept it and at the end willingly go there, rather than cling to life.  Some terminally ill people don’t want their family to witness their death, they consider it personal.  So for family’s who are on a 24 hour vigil, the 5 minutes in which they leave the bedside to have a comfort break will be the 5 minutes that person chooses to pass away.  Others want their family there, will white knuckle the hands of a loved one, rather than let go and feel alone.  Either situation has its emotional impact on all parties.

 

Some family members will communicate with the others that turn up and let them know that if there is anything they can do to help, they will, yet when asked, are always busy with something more important.  They just can’t deal with facing the situation.

 

Some family members want to be involved with everything, do as much as they can, which might be more than is required and might be an invasion of the privacy of the dying person.

 

So what is the answer?  There is no “one” answer and there is no “right” answer.  Everyone deals with death and grief in their own way.  It is important to remember that, however anyone else deals with it, they might not understand how you do and vice versa.  So just give everyone a bit of slack.

 

When in doubt, imagine yourself in a week, a year and a decade and do the thing that means that you won’t have regrets, whatever that is.  And whatever you choose, know that you are not the only person in the world that has felt that, grief is universal, even if you feel alone in the moment.

Pain – managing it for someone else

5 Oct

 

Pain – managing it for someone else.

 

See a loved one in pain, especially if they are having difficulty explaining their pain is really hard to watch.  You can look at their broken body and be sure that they are in pain – they just must be – you only have to think about their injuries!  But pain can be a personal thing, some people are far more stoic than others.

 

So if your loved one cannot explain in words their pain, how do you know?  Do they flinch or grimace?  Are there any changes?  Does something affect their response?  Do they shift their position?  And what can be done to help them?

 

Firstly, contact their doctor to discuss pain medication.  How pain is usually clinically managed, which is to prevent over sedation is to climb up a “pain ladder”, so pain relief is estimated and then generally started at a low level.  Pain relief can also be given regularly or on an “as required” basis for “breakthrough” pain.  So you can have constant pain relief or just when it gets really bad or a combination of both.

 

So having been given pain relief for a few days, to see how they get on, the loved one should be under constant monitoring to find out if this level of pain relief is enough.  So are they still grimacing?  Do they display shifting movement?  Do they look like they are unhappy or hot or cold?  Even when very sleepy and non-communicative, people tend to shift their bodies about rather than lying in a relaxed manner.  And again, if it is safe to lightly touch them somewhere, see how they respond to being touched, they might appreciate the comfort of human touch and you can then feel through your hand any flinching or shift in their body as well as visually observing it.

 

If they are still in pain, then generally pain relief is increased about 20% per rung of the “ladder” and as the pain relief goes up, the person can become more sedated.  The end stage of some diseases are very painful and so pain relief increases and they become more sedated, eating and drinking less, until their body finally shuts down potentially from both the underlying disease and / or lack of hydration and nutrition.  As pain relief increases there is a really careful balance when the person is really poorly, as too much pain relief or too big an increase can trip over the line of providing comfort into assisted dying.  Assisted dying in the UK is illegal, as it is in many other countries and the healthcare professionals are very cautious in this area of care to stay within the bounds of legality.

 

This balance at the end of life is really important, if someone is dying a painful death, then they should be provided relief from that pain and sadly the pain relief can make them more sleepy and in truth, this could to bring about their death more quickly than without it, but no-one should die in agonising pain!  What the professionals cannot do is actively take steps to expedite death, just make it more comfortable.

 

And for the carers watching it, it is an awful experience.  Just awful!

Managing Risk for People with Dementia

21 Sep

 

Managing risk for people with dementia

 

We all take risks, we do it all the time.  We cross the road without looking carefully, eat too much, exercise too little, drink too much alcohol or smoke to name just a few of the things that all of us do.  And sometimes this has serious consequences, with the number of road traffic accidents there are a year, but there are far fewer accidents, than the numbers of people carelessly crossing the road each day.

 

People with dementia are still people, I have red hair (sometimes it is even referred to as being ginger!), but I’m not just known as that, I’m also a solicitor, resident of Plymouth and parent.  There are lots of different facets to me, but when dealing with a person with dementia, why is that the key facet that is seen?  They are more than that, much more.  So if I can take a risk, why can’t someone with a dementia?

 

From the human rights aspect, they can, they are still human and human rights are universal!  The overriding human right it the right to life, so as long as they are not seriously risking their life, everyone, including people with dementia should be allowed to make unwise choices.  We are all allowed a private and family life, freedom of religion, as well as freedom of assembly and association and freedom from discrimination.  We should all be allowed to exercise all of our human rights and it is only at the point that we risk our life, should our ability to exercise our human rights be curtailed and they should only be curtailed to the extent needed to protect our life.

 

In the Mental Capacity Act 2005, there is legislation regarding ensuring whatever decision is made on that person’s behalf, it is the less restrictive of their rights and freedoms.  The key word here is less, it is not least, to do the least restrictive would be to do nothing, but that might mean that it is too risky and becomes a risk to their life.  How many people with dementia say that they want to live at home with no help?  They might want to, but would be dead in a few days if they did, as they have no ability to care for themselves.  So the less restrictive might be to put in a daily carer, possibly even multiple times per day.

 

People with dementia are still people and like the rest of us, are completely unique, with their own views about themselves and the world around them.  They might be very risk averse or happy to take risks, even big risks.  All their characteristics needs to be taken into account when making a decision about someone with dementia, including what they say now, not just what they would have said when they were well.

 

The decision should be the less restrictive, let the person with dementia feel like they are still a person and not just a medical diagnosis and let them take a certain amount of risk as too restrictive a regime might be just as bad and dangerous for health as a too unrestrictive one.  Balancing risk is about seeing the person first, as a real person and not just their dementia.

 

And to all carers out there, from time to time, you may get it wrong, but mostly you get it right and just by caring, you get it right.  Keep up the good work.

 

If anyone needs advice in caring for a loved one, let me know, I understand.