‘Never put off till tomorrow what may be done the day after tomorrow just as well,’ said Mark Twain in 1881 – when on average men died at 50 and women reached 56.
Nowadays, average life expectancy for men in the UK is 79 and 83 for women, and sadly one-in-every-fourteen people over 65 is likely to get dementia.
‘Putting off making a power of attorney is not a good idea, as there might come a day when it is not possible,’ explains David Roper a private client solicitor with Lawcomm Solicitors in Whiteley. ‘Illness could mean that one day you might be deemed to lack the required mental capacity to understand and agree to this important legal document. Once it is too late, then your care is in the hands of other people’.
David explains how decisions about care and living arrangements are made when there is no health and welfare power of attorney in place.
When a decision over care might be needed
The need for an important decision about health and future care could arise if someone considers that a person is at risk.
For example, if someone has had several falls a doctor may be concerned that the frequency of the falls or the severity of injury is increasing and may consider that it is not safe for them to live alone.
Perhaps a health practitioner has noticed that someone is not coping well in terms of cooking or cleaning and has identified a health and hygiene risk.
In a hospital setting, the discharge coordinator may wish to be satisfied that a certain level of care is in place before they will let someone return home.
Attorneys or deputies?
If an individual is found to have lost capacity and they have appointed a health and welfare attorney to act under a health and welfare lasting power of attorney the power to make decisions on their behalf lies with the attorney.
Once mental capacity has been lost and there is no health and welfare lasting power of attorney in place your spouse or a close family member may apply to the Court of Protection to be appointed as your health and welfare deputy. This would give them the legal power to make decisions about your care, treatment and living arrangements on your behalf.
However, over the last few years it has become clear that the Court is reluctant to grant permission for a health and welfare deputyship order and the number of successful applications has decreased.
The principles of the Mental Capacity Act are that a decision of the court is preferred, and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. If a deputy is appointed it is likely to be only in the most difficult circumstances where important and necessary actions cannot be carried out without the Court’s authority or there is no other way of settling the matter in the best interest of the incapacitated individual.
By way of example this could be where an individual suffers from a progressive illness or profound learning disabilities and requires a series of medical decisions to be made on their behalf over a period of time, where a history of family disputes could have a detrimental effect on the incapacitated individual’s future care or where an incapacitated individual is considered to be at risk of serious harm if left in the care of family members.
The legal right to make care decisions for you
Without a power of attorney or a deputyship order, your nearest relatives do not have an automatic or sole responsibility to make decisions on your behalf. So, what happens?
If you have not given someone authority to make decisions under a power of attorney, then decisions about your health, care and living arrangements will be made by your care professional, the doctor or social worker who is in charge of your treatment or care. They will make decisions based on what they consider to be your best interests.
Your close relatives should be consulted – after all, they will typically be the people who know you best – but the doctor does not have to follow their wishes. For example, the healthcare team may also have concerns about the health of your spouse if he or she is elderly and is your primary carer, or the suitability of your home if it is not possible to organise further adaptions.
Disagreement with healthcare professionals
If your loved ones profoundly disagree with the decision of the healthcare professionals, they could ask the court to make a final decision.
Disagreement among family members
If your family members cannot agree among themselves, then a social worker may get involved to organise a best interests meeting, where the pros and cons of each option would be evaluated.
When social services may be involved
A social worker’s role is to ensure vulnerable individuals are protected and well cared for if decisions around care and living arrangements need to be made. They often play a large part in the lives of patients with dementia and other mental health illnesses.
They can, for instance, appoint an independent mental capacity advocate (IMCA) to carry out a community care assessment and make decisions about moving someone if it is in their best interests.
However, social services budgets are under extreme financial pressure and there is regular coverage in the media of failings in the care system. It is worth considering whether you are happy to leave such important decisions to your local authority, or whether you would prefer to choose someone you trust.
Applying for deputyship can be a costly exercise involving a £365 application fee, a £100 assessment fee for a new deputy and a £320 annual supervision fee. It can also be quite onerous, as the deputy will have to submit an annual deputy report about significant decisions made on your behalf. They will, for example, need to keep written records of important decisions they make about your care, including with whom they consulted to make those decisions.
Is it time to make your health and welfare power of attorney?
The best step you can take is to make a power of attorney as soon as possible. This will avoid the need for professionals to make such important decisions for you.
Usually, your attorney would be a spouse or partner, adult child or close relative or friend.
For more information and advice on health and care decisions where someone lacks mental capacity, please contact David Roper or Billie McClelland in the experienced private client team on 01489 864 100 or email at david.roper@lawcomm.co.uk or billie.mcclelland@lawcomm.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
