Tag Archives: Lasting Powers of Attorney

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

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.

How to prepare for the future – part 1

23 Jun

Envelope with Last Will and Testament

How to prepare for the future

 

I was asked recently to talk about what are the 5 top tips for preparing for aging and any potential decline in wellbeing that that might bring.  And the answer is more straightforward than that, as I came up with a top 4!

 

The 4 things are:

  1. Make a Will
  2. Create Lasting Powers of Attorney
  3. Have a conversation with your family
  4. File your paperwork & keep it organised

 

So starting with making a Will, why is this so important?  It allows you to choose where your belongings go.  Even if you don’t own lots of things of value, people still want to be able to remember you when you have gone and to have a memento of someone who has died is a lovely way to do that.

 

It allows you to appoint Executors, who are the people or person who will make sure your wishes happen, they are the people dealing with the paperwork.  They can also be beneficiaries, but they don’t have to be, the 2 separate roles are different.

 

As well as appointing Executors, if you have children under the age of 18, you can appoint Guardians for those children.  In the event of the death of a parent, the other parent with parental responsibility will primarily become the carer, unless there is reason not to allow that to happen and the Family Court can intervene.  The Family Court will take into account the best interests of the child, which will include any appointment of Guardians in the Will.  Not all cases end up in the Court if the matter is uncontested by the various parties involved, it should be the destination of last resort for a dispute.

 

On top of Executors and Guardians, you can make a funeral wish, which is simple terms is whether or not you want to be cremated or buried, but can include much more detail if you want.  I have had entire memorial service directions, including who will read which passage and a hymn list.  It doesn’t have to be in that detail, but if you have a wish, let your family know, so that they can carry it out, it is usually comforting to them to carry out your wishes as a last act of love for you.

 

The final part is leaving your estate, ie all your assets, to whoever you want, possibly including family, friends and charity.  If you have people who are reliant upon you, then it is best to leave them something, otherwise they can make a claim on your estate, but other than that, you are free to leave your estate to whomsoever you like.  Most people leave it to their family or part of their family and if you are going to disinherit a member of your family, it is helpful to give information as to why, to help to rebut any claim they may make.  Family disputes are completely normal, most families don’t get on, it is only about the degree with which that happens!  So when these disputes become so difficult that the only way to deal with them is via lawyers, whilst the lawyers will love it, the family is losing money!  You cannot stop someone from disputing a Will, the best that you can do is limit their chance of success, which will hopefully reduce the cost of litigation.

 

So if you want to prepare for the future, make a Will, as long as you are over the age of 18, there is no time when it is too early, but there can be a time when it is too late!

The Elderly in hospital

5 Mar

shutterstock_9022426 (20)

The elderly going into hospital

 

I’ve had a number of clients who have had bad experiences in hospital and it is worthwhile considering the reasons why in more detail and considering what, if anything can be done to make the experience better.

 

The issues are often around confusion and mobility, although not exclusively.  Mobility means that they need more support to get around, which often means that the hospital will catheterise them, so that they don’t have to be assisted to the loo so often.  They can end up sitting in the same place for an extended time and therefore can end up with pressure damage, although fortunately this doesn’t happen that often.

 

The confusion can be a big issue though.  They are in a new confusing environment, a place that can be active 24hrs a day, a place that they are unfamiliar with, the food tastes different, they can’t find the loo and all the faces are different.  And on the basis that they are in hospital for an acute reason, add to that that they may be in pain and it is easy to see why problems arise.  They get upset at the change and can get aggressive, which makes caring for them even harder, but even if they are not aggressive, they are struggling to adjust to the change of environment, only to be moved on in a couple of weeks.

 

Families will sometimes choose not to have a loved on admitted into hospital and go through all of this, when they think that the end is inevitable anyway.  There is no short right or wrong answer to this dilemma.  If the end is inevitable, it is easy to understand why the families would want their loved one to stay in the environment in which they are familiar, to die as peacefully as possible.

 

The problem with the “inevitable end” is that I’ve been told it is really hard to predict, so may in fact not be as inevitable as we think.  Hospital may be the answer to resolve the acute problem, with the aim to get them back home to a familiar environment as quickly as possible.  Or if not a familiar environment if the acute episode has changed their presentation sufficiently that they have to go to a new place, but again the aim should be to have them into a long term environment and out of the short term environment of hospital, which simply isn’t designed for people to stay in for long periods of time.

 

As for what is to be done, it is for the individual and their families to decide there is no one right or wrong answer.  The point is to understand the issues, take advice and try to make the best decision possible with the information that they have.  And very importantly even if hindsight indicates a different decision may have worked better, remember that hindsight is a perfect vision that we are not blessed with at the time of making the decision.