Preparing for the Incapacity crisis – Lasting Powers of Attorney
Solicitors For the Elderly (SFE) have released a report regarding the upcoming incapacity crisis that is expected to hit the country, including the associated costs and care requirements that this will create.
Lakshmi Turner, the Chief Executive of SFE has said “Far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance. It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, its about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone”.
AgeUK and the Alzheimer’s Society have come together with SFE as a ‘coalition of partners’ in order to help aid this situation and to raise their concerns.
It is scary to hear that the number of people diagnosed with dementia in the UK alone has increased by 53.4% in just over a 10 year period (between 2005/6 to 2016/17) This figure also does not include those who are currently undiagnosed. Currently there are 539,062 people in the UK with diagnosed dementia, but including those that are undiagnosed, that number is estimated to be closer to 850,000.
It has been suggested therefore, that almost 12 million of the 12.8 million currently over the age of 65 and who run the risk of developing dementia, haven’t planned ahead to ensure their wishes are followed. It is believed that by 2025, there will be one million people in the UK alone diagnosed with dementia. This is a staggering statistic. The Centre for Future Studies has stated that “it is clear that as a nation, we are facing an incapacity crisis; one that we are unware of and unprepared for”.
Many people believe that Lasting Power of Attorney (LPA) documents are only for the older generation, but it is important to stress that incapacity is not just a later life issue. Incapacity can occur at any age, due to accident or illness and many, sadly, leave the decision to have an LPA put in place when it really is too late.
If you do not have a Health and Welfare LPA set in place and you were to later lose mental capacity, your loved ones will be left to navigate a complex decision making process at an already emotionally difficult time. They will also potentially be forced to have decisions made without their input by objective medical and social care professionals who may never have met you or be aware of your wishes.
There are several myths and misconceptions regarding medical decisions and the ability of family or friends in those situations. To name just a few:
- Do Not Resuscitate orders (DNR) do not travel with you. Each time you move locations, for example, to a different hospital or care home, a new DNR needs to be created. At this time, it may not be possible to do this, due to a lack of capacity. These wishes, however, can be embedded into a Health and Welfare LPA, which can be shown to all professionals involved in your care by your Attorney.
- Your next of kin cannot make medical and care decisions on your behalf, should you not be able to make these yourself. Only doctors acting in your best interests have the authority to make these decisions, and these can be made with or without the consent of your spouse or relatives.
- Social services can choose a care home that is not in your preferred location. It may be the case that this is a significant distance away from your home or friends and relatives.
- Being on the NHS organ donor register does not automatically ensure that your organs will be donated. If family or friends are not aware about your preferences, this action may not be taken. This can be ensured, however, if possible, if your wishes are part of your Health and Welfare LPA.
If a Health and Welfare LPA is not in place before mental capacity is lost, the only option is to make a Deputyship application to the Court of Protection. Securing an order relating to health and welfare needs is a complex process; it is estimated that at least 90% of applications are not approved. It is much more common to be granted a Property and Financial deputyship, as the scope of authority is generally not as wide as health and care needs. It can also take a minimum of 4-6 months to complete the application and can be very costly.
In the recent survey completed by the SFE, it was discovered that 36% of those involved in the survey had not made any provision whatsoever for later life, including contributing to a pension, writing a Will, saving for retirement, saving for a funeral or creating an LPA.
We wish to reiterate the message from SFE, AgeUK and the Alzheimer’s Society and urge everyone to start thinking about their wishes should they face incapacity in the future and to empower their loved ones in their ability to assist and ensure your wishes are achieved.
If you would like more information on how to create a Health and Welfare LPA or draft a Will, please contact Kate Collins on 01905 900919 or email: katec@bradleyhayneslaw.co.uk.