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How does the ‘incapacity crisis’ affect me?

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In a recent report, findings show that 70% of people would want their families to make decisions for them if they lost capacity, but 79% of people haven’t discussed this with relatives. Head of Harrison Drury’s private client team, Eve Carter, discusses

With the advances in health and social care more of us are living longer. With this lengthened lifespan more people will at some point require friends and relatives to step in and make decisions for us.  However, friends and relatives do not have the legal authority to act in this capacity and we need to have acted during our lifetimes to make sure this authority is in place.

So why is it important to have a Lasting Power of Attorney for Health and Welfare (H&W LPA) in place? Are we aware of what is at stake? For me, there are two flash points where H&W LPA’s really show their worth;

  • Decisions Around Care– Did you know that social services can choose your care home for you if you haven’t got a H&W LPA in place. It’s possible that they may not make the decisions you and your family would make. Appointing an attorney of your choice, who knows your wishes, offers much more certainty, yet it seems it’s something few of us have done.
  • End of Life Decisions – 60% of those surveyed believed that their next of kin could make decisions for them. In reality, only doctors acting in your best interests can, make final medical and care decisions, with or without your family’s consent.

Lasting Power of Attorneys for Property and Financial Affairs (P&F LPA) are more readily put in place as people start to see a decline in a relative’s ability to cope with their daily affairs, and they usually seek legal advice to provide assistance. In some instances this is too late and an application to the Court of Protection for the appointment of a deputy would be needed.

We should be making these preparations ourselves earlier in life when we are less vulnerable to exploitation. We want whoever offers to deal with managing our finances to do it or would we prefer to make an informed choice and use someone we really trust?  Trust is important as the person we appoint will have control of our financial affairs and all that we have accumulated in life once we have lost capacity.

An added note of caution – sadly not all family members can be trusted, and financial abuse of elderly relatives is an issue we need to be aware of. If we have failed to make provision for financial affairs and have lost capacity, then the only route open to our relatives will be an application to the Court of Protection for the appointment of a deputy.

Eve Carter, head of our private client department specialises in mental capacity and Court of Protection issues and can advise families on any incapacity issues.

Eve also acts for clients as a professional attorney and deputy, assisting incapacitated client’s friends and families where financial abuse is suspected. For more information call Eve on 01772 737379 or email eve.carter@harrison-drury.com.


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