Katie Brett, a Chartered Legal Executive in our Wills & Probate department, talks to us about the importance of having a Lasting Power of Attorney.
It isn’t too often that a celebrity’s circumstances brings into focus a situation which relates to the work I do with the Court of Protection (COP) and Lasting Powers of Attorney (LPA). However, we are all aware of how Kate Garraway’s late husband, Derek, contracted COVID-19 and how his illness led to him being unable to manage his own financial affairs and welfare/treatment decisions due to physical and mental capacity issues.
This subject is not often one that people want to consider, much like considering their mortality when arranging to do their Will, but it is important to know the pitfalls and limitations involved when a person does not have an LPA and is in a situation like the one above.
Sooner rather than Later – Mental Capacity
An LPA can only be obtained when a person has the mental capacity to consent to giving that power to their attorneys. There are two types of Lasting Power of Attorney, one for Property and Financial Affairs and one for Health and Welfare. Basically, there is one to look after your money and property and one to look after you.
Without an LPA for Property and Financial Affairs, if you lose mental capacity, nobody can manage your bank accounts, investments, bills, or property on your behalf. Any bills that need paying would go unpaid and if money needs to be released for any care, this also cannot be done. The LPA for Property and Financial Affairs allows your “attorneys” to manage your finances and make decisions regarding them in the same way that you do, including allowing them to sell your property if the funds are required.
It should also be noted that if you become physically incapable of managing your affairs, for example you develop sight or hearing loss or become housebound, the attorneys can manage your finances with your permission. It is only if you are found to not have the mental capacity to make your own decisions that they will be able to manage your affairs without your permission.
Medical basis vs. Personal Wishes
The Health and Welfare LPA is often overlooked as people rely on medical professionals to do what is right for them if they are unable to decide for themselves. However, they will always consider your treatment on a medical basis and may not be able to carry out your personal wishes, or even be aware of them. If you have very clear feelings on any future care or life sustaining treatment you may require, you should have an LPA in place for your health and welfare and ensure that your attorneys are aware of your wishes. You can also list any preferences for care or treatment in the LPA as evidence of your wishes to medical professionals.
Who makes the decision without a Lasting Power of Attorney?
I recall an episode of ‘Holby City’ some time ago in which there was a car accident that left a mother critically injured and placed on life support, a father unconscious and requiring lifesaving surgery and the adult daughter with minor injuries. The adult daughter was the only one that was conscious and therefore the only one able to make decisions in respect of her parents’ treatment. She had no siblings to confer with.
As soon as the daughter is made aware that her mother would never recover from her injuries and was only alive due to the life support machines, she stated that her mother would want to be let go and for her organs to be used for medical treatment. However, when the father regains consciousness, he retracts his daughter’s consent.
What if there’s no agreement and no Lasting Power of Attorney?
In the end the daughter persuaded her father that her mother would never regain consciousness due to the injuries she had sustained, and he reluctantly agreed to go ahead with organ donation. It was not clear if the mother had a Lasting Power of Attorney but by then it was too late to obtain one and if the father refused to give consent and the daughter wanted to pursue it, they would have had to apply to the Court for a decision. Cue a lengthy court application and the mother’s life and organs being placed in the hands of a judge who knows nothing of her personal wishes and preferences for organ donation and life sustaining treatment.
Had the mother obtained an LPA prior to the accident, she could have stated that her organs were to be donated and that would trump any opinions that the father had. She could also have included her wishes in respect of life sustaining treatment, whether she wanted to be kept on artificial ventilation, whether she wanted to be resuscitated or not and other various treatment and care wishes.
In comparison to an LPA, a COP application is a lengthy and costly process, which would mean that the mother in this situation would need to be kept on life support until the Court made a decision. It would also mean that the family members would need to attend Court and state their case for consenting or not consenting to life-sustaining treatment and organ donation. At such an emotional and difficult time for a family, the additional stress is not needed, and it can cause divisions within the family and animosity that can be avoided with an LPA in place in advance.
Who makes the decision with a Lasting Power of Attorney?
It should also be noted that the LPA gives you the option to select who you want to appoint to make any final decisions on life sustaining treatment if the need arises. You can give your attorneys the power to refuse or consent to treatment, or you can give the Doctors the power to refuse or consent treatment.
Whilst Doctors will always liaise with family members and discuss all the options with them, they will always look at what is best for you from a medical point of view, whereas your family would have more of an understanding of your personal wishes. For example, if you do not want to have life sustaining treatment if your quality of life is going to be severely affected, your attorneys would be able to refuse any treatment offered by the Doctors, even if the Doctors would have continued with the treatment.
How can we help?
At Amphlett Lissimore, we can advise you about the different types of Lasting Powers of Attorney. As with a Will, having a Lasting Power of Attorney in place allows you to take control and make these important decisions for yourself, and save your family and next of kin from difficult decisions and lengthy legal processes.
If you would like to discuss Lasting Powers of Attorney further, please contact our Wills & Probate team, based at either Crystal Palace or West Wickham.
About the Author
Katie Brett is a Chartered Legal Executive specialising in Wills and Lasting Powers of Attorney. She also has extensive experience in Court of Protection, Probate and Estate administration, and is a member of the Association of Lifetime Lawyers. Whilst Katie is based in our West Wickham office, she regularly meets with clients at our Bromley office.