June 6, 2017
‘Be nice to your kids… they’ll choose your nursing home’. I recently saw this on a greetings card. It’s designed for children to send to their parents as a joke and, admittedly, it did make me smile. But, being a private client solicitor, it also made me think about whether the kids will be able to make that decision. Will they be able to agree among each other and if they do agree, will the decision be one their parents will be happy with?
In 2015, the leading cause of death for both men and women over 80 years of age was dementia or Alzheimer’s disease. Dealing with a relative who has dementia is something that many families have to face.
Since 2007 it has been possible to create a health and welfare lasting power of attorney (LPA) which allows you to choose someone who will make personal decisions on your behalf, in the event that you lose mental capacity.
A health and welfare LPA can only be used if you are unable to make decisions for yourself. So it isn’t about giving up control, it is about taking an opportunity to appoint someone you trust, directing them as to your wishes and providing them with authority to make decisions about your health and care for a time when you may be unable to do so yourself.
A health and welfare attorney can make decisions about where you will live and what care you will receive. They can ensure that your care meets your wishes and expectations. They can make decisions on day-to-day issues such as what you will eat, which dentist you will see, and who can visit you. You can also nominate your attorney to consent to or refuse life-sustaining treatment (such as being resuscitated).
Modern families can be complicated. If you want someone who is not your legal next of kin to make decisions about your care (such as an unmarried partner) or you are worried that your children may not agree about care choices, it would be wise to appoint an attorney.
A health and welfare LPA can make life easier for your relatives, directing them about your care wishes and expectations. Even if you lose capacity and are unable to tell them what you want, there is a record of your wishes. Without one, decisions could be made without your knowledge.
Even if professionals are trying to act in your best interests they may unwittingly care for you in a way that is against your wishes. Only your legal next of kin will be consulted about decisions such as life-sustaining treatment. Social services may need to become involved in decisions as to where you should live and what care you should receive. If agreement cannot be reached, an application may need to be made to the court of protection, which can be time consuming and expensive.
No one likes to think that they may lose capacity or need nursing care but with a health and welfare LPA, you have the re-assurance of knowing that if the worst happens you have chosen someone you trust to make decisions for you.
Rachel Swinburne is a panel deputy for the Office of the Public Guardian, a fully qualified TEP (Trust and Estate Practitioner), a member of Solicitors for the Elderly and DBS checked to work with vulnerable adults.
Contact her on: firstname.lastname@example.org
0191 245 4831