7 September 2018 by Soshana Day

Incapacity crisis!

Have you made a plan for what will happen to you if you were unable to make decisions about your health and welfare?

You are not alone if you haven’t. A recent report commissioned by The Association of Lifetime Lawyers and the independent think tank, Centre for Future Studies, found that 97% of people are leaving these decisions to chance. This is despite the fact that the number of people who are at risk of developing a condition that will affect their mental capacity at some point in the future is increasing.

If you lose your mental capacity someone will make decisions regarding your health and welfare on your behalf. It is a common misconception that that someone would automatically be your spouse, partner or a member of your family. However, if you have not formalised who can act on your behalf these decisions will be made by medical and social professionals, and there is a risk that your preferences won’t be taken into account.

If your family or partner disagrees with the professionals their only option is to apply to the Court of Protection for an Order. These applications usually take 4 to 6 months, are costly and due to the wide scope of decisions that can be made are rarely granted.

A health and care lasting power of attorney (LPA) allows you  to appoint a person or group of people you trust (your attorney/s) to make decisions regarding your health and welfare in the unfortunate instance that you are no longer able to. You can give your attorneys guidance on your wishes and views on medical treatment, end-of-life decisions and any care and living arrangements if necessary.  The LPA can only be made when you have mental capacity and used by your attorneys when you lose capacity. At all times your attorneys must act in your best interest and in accordance with the Mental Capacity Act 2005.

It is important to think now about what you would want to happen if you were ever to lose capacity. We recommend that you talk to your family to let them know of any wishes that you have and formalise these wishes by contacting a solicitor and arranging for an LPA to be professionally prepared.  It is possible to prepare your own LPA but it is better to seek legal advice to ensure that your LPA is valid and accurately reflects your wishes.

At Bolt Burdon, we have a team which specialises in LPAs and related work headed by Michael Culver who is a director of The Association of Lifetime Lawyers. If you have any queries regarding LPAs or you are looking to make one, then you can contact a member of our Wealth Planning team here.


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