A lot of us have been home a while and are slowing working through those list of household jobs we meant to get around to, but the weekend always went by so quickly. Many people have a will on their list, (we have prepared a separate note on what happens if you don’t have one) particularly when they’ve brought a house, had children or both but how many of us think about making a Lasting Power of Attorney? We have received a number of calls from clients and members of the general public wanting to make a will but very few people realise that the life-time management of their health and finances is just as important. What happens if you get seriously ill and can’t manage your finances? Many people believe a spouse or partner can make decisions about their health care, but the law doesn’t allow for this. Even if you just have to self-isolate this can cause a problem if you can’t leave home to attend to business. We thought it would be useful to just remind people of what the legal position is.
Managing your Affair
It is predicted that most of us will only suffer mildly from the coronavirus although it may prove more serious for those who have underlying health conditions or are over the age of 70. Corona Virus apart, accident, stroke, old age and other events can all rob us temporarily or permanently of the ability to manage our finances and health care.
It’s important to remember we are always presumed to have the mental capacity to manage our financial affairs until it’s proved to the contrary. Despite being unwell and not fully functioning there are a number of options open to you.
Third Party Written Authority
While the sale of a property and certain other acts require a power of attorney to delegate decision making, in most cases a simple written authority can suffice. By example authorising third parties to collect payments on your behalf or medical authorities to disclose details of your medical history and treatment to family members.
Power of Attorney
So long as you have mental capacity you can appoint an attorney to act on your behalf under a General power of attorney which allows them to manage your financial affairs. Such a document can be simply prepared and does not require registration with the Office of the Public Guardian.
Mental Capacity and consent to treatment
The only person who can give their consent to the carrying out of medical treatment is you. You may be unwell but there is still a presumption you have capacity to make decisions.
The key test when deciding whether or not you have capacity, is whether you can understand the nature and consequences of your actions. Decision making is also time and matter specific.
You may not be well enough in the morning to make decisions but feel better come the afternoon. It does not matter that later in the day you again lose the ability to make decisions. It’s sufficient if at the time a decision needs to be made you are able to understand the nature and consequences of it.
What is in your Best Interests?
If you can’t give your consent to medical treatment then any carried out must be in your best interests. When considering what is in your best interests, regard must be had to anything you’ve put in writing as to treatment you would and wouldn’t wish to receive.
While a best interest statement is not binding, it can immediately come into effect and is a document which must be had regard to when medical treatment is being considered. As it takes time for a Lasting Power of Attorney to be registered it can be a useful stopgap.
Advance Decision to refuse medical treatment (“The Living will”)
If you don’t want to receive medical treatment in certain circumstances, then you can make a signed statement to this effect. So long as that statement has been witnessed it’s binding.
An Advance Decision is something you can consider putting in place until a Lasting Power of Attorney is registered. Takes around 8 weeks from sending to the Office of Public Guardian.
Lasting Powers of Attorney
There are separate powers of attorney for your health and financial affairs. If you have an Enduring Power of Attorney, it only deals with your financial affairs and does not cover any decisions relating to your healthcare.
While a spouse or next of kin will be consulted as to any form of medical treatment on the best interests principle, anything that they may say does not have to be followed.
The purpose of a Health and Welfare Lasting Power of Attorney is to allow a third party to make decisions as to your health and welfare if you are not able to do so. This can include the refusal of life sustaining treatment. This can mean anything from a simple course of antibiotics to resuscitation.
Whenever considering making a Health and Welfare power of attorney it’s important to discuss with your attorneys ( Anyone over 18 can be an attorney, we are not talking about solicitors here) what you would regard as a minimum acceptable quality of life.
A Financial Lasting Power of attorney allows your attorneys to conduct your financial affairs when you don’t have the mental capacity to do so. A General power of attorney is invalid during such time as you have lost capacity.
Anyone holding any form of power of attorney can act in the same way that you can. That is to say if you own a house, subject to applying any conditions in your power of attorney then your attorneys would have the legal ability to sell it. In doing so of course they must be acting in your best interests. Choose your attorneys with care. But don’t just appoint your spouse or partner
Cause for thought?
We hope this note gives some reassurance and for some people it will no doubt give them cause for thought. To ensure continuity of service during this difficult time we have members of our Estates Department working remotely so that they can continue to provide a service. If you have any issues that you would like to discuss then we would be happy to speak with you either by telephone, email or a video conferencing facility. In respect of the latter we are happy to communicate by either skype, Zoom or other similar means.
We wish you all well over the coming weeks.