Getting your legal affairs in order shouldn’t just be about what you want to happen to your estate after death. We believe it’s also vital to have legal plans in place to ensure your own care and financial affairs will be well taken care of in the future.
Many people assume that their loved ones would be able to take charge of these kinds of decisions if they were no longer able to. Unfortunately, the law in these situations is not as straight-forward as you might think.
You can avoid any uncertainty about whether or not those closest to you would be able to step in on your behalf by ensuring you have made a Lasting Power of Attorney well in advance of when you might need it.
Do you know what to do when someone dies?
Download our handy guide which explains all the legal responsibilities you will encounter when someone close to you dies.
Why might you not be able to make decisions for yourself?
There are many reasons why someone might become unable to make decisions for themselves. This could happen at any stage of a person’s life, and can occur with no warning.
This could include:
- Being involved in a serious accident
- Experiencing a major mental health crisis
- Having a health emergency
- Being diagnosed with a condition such as Alzheimer’s disease or dementia
- Experiencing a sudden degeneration of an existing condition
In many of these cases, the individual’s incapacitation is likely to be temporary. A course of treatment could mean they are able to return to full capacity and continue managing their own affairs as before. However, it’s important to know that the people you would want to step in on your behalf during this period would be able to make clear what your wishes would be while you were unable to communicate them yourself.
Of course, in some cases incapacitation is permanent. If this was to happen, you would very much want to know that the people closest to you would have the legal power to make decisions in your best interest.
What happens if there are no plans in place?
You might think that your next of kin would be able to handle any necessary arrangements should you find yourself in this position. However, ‘next of kin’ is not actually a legal definition and therefore carries no legal rights.
If you were to be taken into hospital and were unable to communicate with medical staff – perhaps due to unconsciousness or severe confusion – they would generally seek to locate your next of kin/emergency contact. If you arrived at hospital alone, they would usually do this using your medical records or information they found about your person (such as a wallet or mobile phone).
Once a close contact had been found, the hospital would then keep this individual updated about your condition and may ask them what your wishes would likely to be about your care. However, though medical staff may well take these answers into account, your next of kin would not have the legal right to overturn any decision the hospital made about your care on your behalf, including decisions about Do Not Resuscitate (DNR) orders. Your loved ones would also not be able to manage any of your financial affairs while you were in hospital and unable to do so yourself.
The issue could become even more critical if you remained without capacity for a longer period and decisions needed to be made about moving you into a care facility or accessing funds to pay for care at home. In situations such as these, the people closest to you would need to make an application to the Office of the Public Guardian to be appointed as your deputy. This process can be complicated and stressful, and may take time you don’t have to spare. In the meantime, decisions might need to be made on your behalf by medical staff, social workers, solicitors or even the courts.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you as an individual to formally appoint someone to make decisions on your behalf should it become necessary. There are two types of LPA, one that covers decisions about your health and care and one that covers decisions about your property and finances. Many people choose to make both types of LPA at once.
In your LPA, you will need to appoint a person, or group of people, to make decisions on your behalf. The person who makes the LPA is referred to as the ‘donor’ and the person who has been appointed to act on the donor’s behalf is called the ‘attorney’. It is possible to appoint as many attorneys as you like. You can also choose to appoint different attorneys for your health and care LPA and your property and finance LPA.
How to make an LPA
The best way to make an LPA is to do it with a solicitor. This is because homemade LPAs often turn out to be non-binding and void. This can cause significant issues if a problem is not discovered until the time when the LPA is needed.
Working with a solicitor makes the process of making an LPA very easy. Once you’ve chosen who you would like to appoint as your attorney(s) and what kind of decisions you would like them to be able to make on your behalf, your solicitor will be able to draw up a document for you to sign. Your solicitor will then keep the original signed copy of your LPA on file, where it will be ready should it ever be required.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like to discuss these issues further, please contact us.