Have you considered who would make decisions about your day to day life and personal wellbeing if you are not able to? Have you thought about who might be voicing your wishes and concerns at a time when you no longer can?
It is a common mistake to assume that your decision making will automatically be handled by your next of kin. It is also amiss to expect medical practitioners to always consult with loved ones when making decisions.
Recent months have forced us to address the possibility of falling ill or becoming incapacitated and question the care we may receive and those who will advocate for us. Here we highlight some case studies where not having a Health and Welfare LPA in place could have resulted in very different and unwanted outcomes..
Case study one
Mrs M lives alone. She has three children, but they do not live locally. Mrs M had a fall which put her in hospital. She recovered well and was discharged home. As part of the discharge process, a social worker came to visit Mrs M at her home. They got talking and Mrs M said that she was pleased she was home safe and well as the thought of going into residential care worried her greatly, especially because her children were not close by. The social worker asked if Mrs M had a Health and Welfare LPA and Mrs M told her she only felt the need to put in place a Property and Financial Affairs LPA. The social worker suggested Mrs M put in place a Health and Welfare LPA too, and explained that without one social services could make a decision without involving Mrs M’s family. Mrs M made a Health and Welfare LPA appointing her three children as her attorneys to ensure that if ever she was unable to make such decisions then her children could.
Case study two
Mr W has been with his partner for over 30 years. They are not married and do not have children. Mr W was due to undergo a serious operation which carried a risk of complications. He was told that his partner would not be consulted should a medical or care decision need to be made as she was not his next of kin, in fact his elderly parents were. Mr W did not want such difficult decisions to be decided by his elderly parents and so put in place a Health and Welfare LPA appointing his partner and brother instead.
Case study three
Mr S suffers from Alzheimer’s and a short illness meant he had to stay in hospital. He was put in a tiny room with lights permanently left on and no means of communicating with hospital staff. Mr S had a son who would visit frequently. When he asked to speak with the doctor in charge of his father’s care he later overheard the doctor say, ‘I do not have to speak with the son’. The next day the son produced a registered Health and Welfare LPA and spoke with the doctor and had his father moved to a more appropriate room.
Now more than ever it is crucial to ensure that proper legally binding arrangements are put in place prior to loss of mental capacity so that the people you trust can make decisions for you.
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This article was written by Emma Thorpe, Associate in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2020.