Tag Archives: Lasting Power of Attorney

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.

The Death Conference – Part 4

30 Apr

Coffin in morque

The Death Conference – my talks

 

Following on from my earlier blogs, I was very honoured to be asked to Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on North Hill on 27 & 28 March 2015.

 

The purpose of the conference was to get the conversation going about death, that death and dying is part of life, and that we should talk about it more or even at all in some cases.

 

Wendy asked me to speak twice, so after discussion with her, we agreed that I would split up my talks into pre-death and post-death legal issues.

 

So what did I say in my post-death talk.  I gave a run through of what would happen in a straightforward situation and then started to look at what makes the circumstances more complicated.  Starting with a Coroner’s Inquest, they can be for all sorts of reasons, but locally amongst the reasons can be death related to working in the Dockyard, as there was asbestos in the Dockyard in the past.  Or it can be because of an unexplained death, so if someone dies from an illness and they have not seen their GP or other medical practitioner then the death is considered “unexplained”.  Sometimes they can be death with via a post mortem, but on occasions, so Inquests require a hearing and this is a chance for the family to be heard.  I would suggest that legal advice is sought in that circumstance.   The Coroner issues “Fact of Death” certificates, which are not the same as Death Certificates, which is some cases does not hold up the administration of the estate, but in other cases it does, as some assets will not pay out unless there is a cause of death.

 

If the estate is contested in some way, that will cause the administration of the estate to be held up whilst the dispute is resolved.  Some of these claims are about “sorting out a deal”, so if one party is at a financial disadvantage and needs money, the may be in a weak bargaining position and end up settling for less than they might otherwise have got.  This is where the litigator will help to sort out the end result.

 

There are a number of reasons why an estate could be contested, which includes challenging the Will, because for examples someone claims that it is a fraud or because they claim that the testator lacked capacity when they created / signed the Will.  There are also legal challenges of “want of knowledge and approval”, which is linked to lack of capacity and it is also linked to “undue influence”, another potential challenge.  Undue influence is hard to prove, as suggesting something to someone and that person thinks the suggestion is a good idea is very different from doing something against your will, as the person suggesting it is so overwhelming in their insistence that it is a good idea.  It is for this reason that undue influence claims are more often won on want of knowledge and approval than undue influence, which is hard to prove.

 

The next way that an estate can be challenged is by a claim for “reasonable financial provision” by a financial dependent.  There are 2 categories of claimant, a spouse and everyone else.  The amount that a person should leave to their spouse is different level of support than anyone else, so there is a higher standard to support for them.  Anyone else can include children, but an important category of person is the partner they live with, but have not married, without a Will, the rules of intestacy would not benefit a partner, even though they live like a spouse, which leaves the surviving partner having to make a claim against the deceased estate.

 

Intestacy can cause issues, but not always, sometimes the rules work out and might be what the deceased would have wanted or almost what they would have wanted, but not always and beneficiaries can row.

 

My key message at the talk, was that sometime these things happen, but try not to let them happen as it is in this scenario that the lawyers get rich!!

The Death Conference – Part 3

17 Apr

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The Death Conference – my talks

 

Following on from my earlier blogs, I was thrilled to be asked to Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on North Hill on 27 & 28 March 2015.

 

The purpose of the conference was to get the conversation going about death, that it is part of life, and that we should talk about it.

 

Wendy asked me to speak twice, so after discussion with her, we agreed that I would split up my talks into pre-death and post-death legal issues.

 

So what did I say in my post-death talk.  The first point that I made was not to panic, it is a distressing time for families, they are shocked and bereaved and they don’t know what to do in the first few hours and days.

 

So first things first, get the funeral sorted, and in order to do that the family will need to register the death and find out if there is a Will and if there is, to find out if there is a funeral clause in the Will.

 

The next thing, find the Will & work out who the Executors are, check any insurance policies to see what effect the death of the policy holder will have, if any and work out if there are any cashflow issues.

 

Then you can start to deal with the administration of the estate, which in simple terms, is gathering the financial information to obtain the Grant of Probate and completing all the necessary paperwork, including the Oath and IHT form.  Then gather in the financial assets and pay any liabilities and the final stage is to distribute the estate in accordance with the terms of the Will or intestacy.

 

There are things that can make a simple estate, as described above more complicated and that includes: Inheritance Tax issues, contested estates, claims against the estate and coroner’s inquests.  Any foreign element can also make things more complicated, whether the deceased was not a national of England & Wales or if they owned assets in another jurisdiction, such as a holiday home in France or Spain!  Homemade Wills can have flaws in them, the drafting is easy to get wrong.  Any unclear terms in the Will can cause issues, so “my children” does not include step children, but does include children from an earlier marriage, is this what you want,  if your Will was professionally drafted, then there may be a claim against the Will drafter.  For any of these issues, seek help!

 

There were lots of questions at the talk, as these issues affect lots of people.  If they knew what they left behind, they may take steps to make sure that they don’t leave their loved ones with a mess to sort out.

 

Thank you Wendy for getting this important conversation started.

The Death Conference – Part 2

9 Apr

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The Death Conference – my talks

 

Following on from my earlier blog, I was very honoured to be asked to speak at Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on 27 & 28 March 2015.

 

The conference was aimed at getting the conversation going that death is part of life, which it is not a taboo subject and it is fine that we talk about it.

 

Wendy asked me to speak twice, so after discussion with her, we agreed that I would split up my talks into pre-death and post-death legal issues.

 

So what did I say in my pre-death talk?  It was about talking with the family, getting some preparation done, which in the end makes it easier for anyone grieving and left behind afterwards.

 

I split the talk up into dealing with the situation if you have mental capacity to make decisions and if you don’t.  So if you have mental capacity, create Lasting Powers of Attorney, so that your family and loved ones can take care of you if you ever lose mental capacity.  And don’t forget to make a Health and Welfare Lasting Powers of Attorney, all too often people worry about their money, but not themselves.  LPA for Property and Financial Affairs allows someone to make decisions about your financial assets, which is important; you still need to get your bills paid.  But don’t forget about an LPA for Health and Welfare, this allows someone to make medical and social care decisions for you at a time when you cannot make them for yourself.

 

As well as Powers of Attorney, make a Will, so that your estate can pass to wherever you want it to go after you have died.  And the final message was to leave your estate in order.  If you have paperwork, keep up with your filing, keep it all in one place, let you family know where your paperwork is and if you are willing to share some details, let them know some information about your estate, such as which bank you use.  If you don’t want to share that information, just let them know where they can find that out.

 

If you are unlucky enough to lose mental capacity before your arrangements have been made, then your family will need to apply to the Court of Protection for a deputyship order, so that they can manage your affairs on your behalf.  This is a much more complicated process than creating LPA and much more expensive, with ongoing costs, however it is not impossible and therefore the message is that although it is best to make arrangements, if you haven’t the situation can still be managed.

 

Thank you Wendy for getting this important conversation started.

The Death Conference

2 Apr

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The Death Conference

 

I was incredibly honoured to be asked to speak at Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on 27 & 28 March 2015.

 

The idea was that lots of people who work in the “death industry” will get together and talk to anyone who wants to listen.  The message is that death is part of life and we don’t talk about it.  The effect of this is that as an industry we can learn more and make this difficult and emotional time a bit easier for those that are left behind (hopefully).  And additionally as a social movement, we just need to be talking more about it.

 

So lots of organisations got together, including St Lukes, Plymouth Registry Service and Jeremiah’s Journey to name but a few to take part in the “Information Hub”, a drop in centre where members of the public could come to any one of the stands to get some advice.  There were also some talks from many different people, so that the general public or any of the professionals who were there could listen to the presenter about their work and ask questions.

 

The atmosphere was informal, there was tea and coffee available and at the beginning of most of the talks, as part of the housekeeping, the introducer discussed the possibility that anyone in the room could be recently bereaved or possibly not so recently and that if something that was discussed hit a nerve, they could just step out of the room and no-one would think any the worse of them.  It was a very supportive atmosphere where anyone could talk, even about things that were emotive to them.

 

So how did it all go?  Brilliantly!!!  The speakers were fantastic, they were varied, interesting and the audience asked lots of questions, which shows just how engaged with the subject matter they were.

 

The outcome of this, is that hopefully the conversation can commence, that death is a part of life and we need to talk about it.  One great thing to come out of this is that there are people who are thinking about how the bereaved respond to the death of a loved on and will change their practise having taken part in the discussion that will make things easier for the bereaved.

 

The message: Death is part of life and not only is it OK to talk about it, but we need to.  And great conference, looking forward to next year’s!!  Thank you Wendy.

 

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Dementia and Human Rights – Part 15

4 Sep

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Dementia and Human Rights – Part 15

 

So to complete this series of blogs, it is probably worth having a little round up.  There are a number of pieces of legislation relating to people with dementia, some emanating from English jurisdiction, some from European source and some worldwide international from the UN and we have taken a journey through them all.

 

But what does Human Rights and Dementia really mean?  It means that people with Dementia are still people; they should be treated with dignity and respect, like all people should.  They are not different, more fragile, unhuman, alien or anything else, they are people and they are people first before they are their diagnosis.  We all have idiosyncrasies, those little things about us that make us who we are and those things change over time as we grow and develop at humans.  People with dementia are the same, it is just that some of their idiosyncrasies relate to their dementia.

 

So how would any of us feel if we were treated unfairly or even differently because we don’t like cheese or we really, really like cheese a lot!!? Or we drink tea with loads of milk or hardly any, all these things make us who we are, they are part of our character and yet we expect to be treated like everyone else in spite of these preferences, or maybe because of them.   I’m not equating milk preference to dementia, all I’m saying is that we are all individuals, we are all unique and special and for someone with dementia, their dementia is part of their specialness.  That’s how people with dementia are still people.

 

But what about their Human Rights?  It is important as far as possible to ignore that they have dementia and treat them the same as everyone else, but what about when you can’t ignore it?  That is the time that reasonable adjustments should be made, that we provide compassion and non judgemental support to those people.

 

The Dementia Friends movement is spreading the message of Dementia Awareness and importantly one of the key messages is that kindness counts.  People with dementia may not be able to remember the words you said, but they will remember for a much longer time that you were kind to them.  Surely that’s the same for everyone, surely we all want to be treated by others in a kindly manner!!

 

So yes, we may have to say the same thing more than once, but it is about being kindly, not bad tempered about it.  Dementia is eventually a terminal illness, we don’t know how long the journey to death is going to be, but death is coming – it’s coming for all of us! So Human Rights and Dementia is about making sure that they are treated well, with kindness and forethought into what they want, to empower them to make decisions for themselves.

 

I was involved in the discharge from hospital of someone with a memory issue.  They were fed up, as they had waited all day and the bed had been changed, so they did not want to get back into bed where it was more comfortable, so they sat in an uncomfortable chair.  Hours later, they understandably wanted to go, so we took verbal advice, as the discharge letter wasn’t ready and left.  That person was really happy to get home, we chatted on the way out & they were glad someone had not just listened, but actually heard them.  They were settled at home, food made and they had a good nights sleep.  We chatted to make sure that they knew what to do & everything was fine.  The “reasonable adjustment” that were made was around making sure that they were reminded what to do and once they remembered we could move on.  That person was treated with respect and their wishes respected, they were treated with dignity, although they could have been treated more kindly in hospital, rather than being left to be sat in a very uncomfortable chair all day.  It probably wasn’t convenient for the nurse, but so what, no-one was rude, the process merely consisted of safely arranging for the wishes of the person to be granted.

 

So Human Rights and Dementia – it’s about being a person first and compassionately and with care, making the necessary adjustments to respect their wishes.  They are people first!  Respecting our wishes is what we all want, our wishes are our dreams and that’s how are dreams come true!