Incapacity Crisis: action needs to be taken!

A report produced by the Solicitors for the Elderly has highlighted how unprepared we are as a nation in terms of making provision regarding our future medical and care needs. The full report can be accessed here . The results are astonishing. Some of the key findings are set out below:

  • 65% of the general public incorrectly believe that their next of kin can make medical and care decisions for them should they not be able to make such decisions themselves.
  • Most people are unaware that only doctors have the authority to make medical decisions if there is no Lasting Power of Attorney for Health and Welfare in place and that social services can make decisions about where we live (which could be in a care home a significant distance from our home/friends/family).
  • The upward trend of developing dementia leading to incapacity is spiralling. 1 in 14 of are predicted to develop dementia at age 65 rising to 1 in 6 at age 80 and over. There are currently 12.8 million people over 65 but there are only 928,000 Health and Welfare Lasting Powers of Attorney in place and so almost 12 million of us have not planned ahead.
  • 70% of us would want our family to make medical and care decisions if we were unable to make such decisions ourselves. This is hardly surprising given that these types of decisions are highly personal and yet a stranger such as a doctor or a social worker would be acting from a purely objective viewpoint.
  • In the event of a dispute regarding medical and care needs, there is the option for interested parties to make an application to the Court of Protection but this can be a lengthy, costly and stressful process.

What is a Health and Welfare Lasting Power of Attorney?

This is a legal document which needs to be validly executed and registered at the Office of the Public Guardian before it can come into effect. The person making the Lasting Power of Attorney is referred to as the “Donor”. Within the Lasting Power of Attorney, the Donor nominates a person(s) to act as their Attorney. If the Donor subsequently lacks capacity, the Attorney can then step in to make decisions regarding all matters that affect the Donor as a person This includes decisions about where the Donor lives, who visits them, decisions concerning their diet, dress and the medical treatment they receive. It can also give the Attorney the power to determine whether or not the Donor receives life sustaining treatment.

What next?

Solicitors for the Elderly (SFE) is an independent organisation providing specialist legal advice to elderly and vulnerable people. The advice from the SFE is to make a Lasting Power of Attorney for Health and Welfare. Although it is possible to set up a Lasting Power of Attorney independently, the SFE are urging the general public to seek specialist advice to avoid setting up a weak or flawed document which could lead to emotional and financial distress later down the line.

If you are interested in making a Lasting Power of Attorney please contact John Lane on 01904 688506; email or one of the Private Client team

Posted on: 10/07/2018

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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