What happens when there is no health & care LPA in place
‘Never put off till tomorrow what may be done the day after tomorrow just as well,’ said Mark Twain in 1881 – when on average men died at 50 and women reached 56.
Nowadays, average life expectancy for men in the UK is 79 and 83 for women, and one-in-every-fourteen people over 65 is likely to get dementia.
‘Putting off making a power of attorney is not a good idea, as there might come a day when it is not possible,’ explains Deborah Adams a private client solicitor with Parnalls Solicitors in Launceston. ‘Illness could mean that one day you might be deemed to lack the required mental capacity to understand and agree to this important legal document. Once it is too late, then your care is in the hands of other people’.
Deborah Adams explains how decisions about care and living arrangements are made when there is no health and welfare power of attorney in place.
When a decision over care might be needed
The need for an important decision about health and future care could arise if someone considers that a person is at risk.
For example, if someone has had several falls a doctor may be concerned that the frequency of the falls or the severity of injury is increasing and may consider that it is not safe for them to live alone.
Perhaps a health practitioner has noticed that someone is not coping well in terms of cooking or cleaning and has identified a health and hygiene risk.
In a hospital setting, the discharge coordinator may wish to be satisfied that a certain level of care is in place before they will let someone return home.
Applying to act as your deputy
Once you have lost mental capacity, your spouse or a close family member may apply to the Court of Protection to be appointed as your personal welfare deputy. This would give them the legal power to make decisions about your care, treatment and living arrangements on your behalf.
This is a costly exercise involving a £365 application fee, a £100 assessment fee for a new deputy and a £320 annual supervision fee. It can also be quite onerous, as the deputy will have to submit an annual deputy report about significant decisions made on your behalf. They will, for example, need to keep written records of important decisions they make about your care, including who they consulted with to make those decisions.
The legal right to make care decisions for you
Without a power of attorney or a deputyship order, your nearest relatives do not have an automatic or sole responsibility to make decisions on your behalf.
If you have not given someone authority to make decisions under a power of attorney, then decisions about your health, care and living arrangements will be made by your care professional, the doctor or social worker who is in charge of your treatment or care. They will make decisions based on what they consider to be your best interests.
Your close relatives should be consulted – after all, they will typically be the people who know you best – but the doctor does not have to follow their wishes. For example, the healthcare team may also have concerns about the health of your spouse if he or she is elderly and is your primary carer, or the suitability of your home if it is not possible to organise further adaptions.
Disagreement with healthcare professionals
If your loved ones profoundly disagree with the decision of the healthcare professionals, they could ask the court to make a final decision.
Disagreement among family members
If your family members cannot agree among themselves, then a social worker may get involved to organise a best interests meeting, where the pros and cons of each option would be evaluated.
When social services may be involved
A social worker’s role is to ensure vulnerable individuals are protected and well cared for if decisions around care and living arrangements need to be made. They often play a large part in the lives of patients with dementia and other mental health illnesses.
They can, for instance, appoint an independent mental capacity advocate (IMCA) to carry out a community care assessment and make decisions about moving someone if it is in their best interests.
However, social services budgets are under extreme financial pressure and there is regular coverage in the media of failings in the care system. It is worth considering whether you are happy to leave such important decisions to your local authority, or whether you would prefer to choose someone you trust.
Is it time to make your health and welfare power of attorney?
The best step you can take is to make a power of attorney as soon as possible. This will avoid the need for professionals to make such important decisions for you.
Usually, your attorney would be a spouse or partner, adult child or close relative. If you have no family or close friends, consider asking your solicitor to act as your attorney.
For more information and advice on health and care decisions where someone lacks mental capacity, please contact Deborah Adams in the experienced private client team on 01566772375 or email email@example.com.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
The Right to Make Noise
Ill-health pension transfer not liable for IHT
Legal Time Limits - why so important?
Would you pay a premium for a south-facing garden?
Video-witnessed wills to be made legal
New Planning Relaxation Is Not the Whole Storey
How to minimise delays in obtaining Grant of Probate
Could you benefit from the Green Homes Grant?
A SHOCK TO THE SYSTEM: new electrical safety regulations for residential tenancies
Property of Cornish residents who die without a will goes to Prince Charles
Does your lawyer progress your accident claim efficiently and provide you with a personal and professional service? Can i change solicitors for my accident claim?
What effect could the new changes to stamp duty have on property sales?
Preparing to sell your Launceston property
Staying safer in video meetings
Making Sure Your Great New Home Comes With Clean Air
Property Market Re-Opens in England
Coronavirus: Wills and Powers of Attorney FAQ
Medical Care Received Not Up to Scratch?
Had an Accident in Someone's Home?
Accident or Injury Involving a Dog?
Social Distancing No Obstacle for Parnall's Mobile Document Signing Team
Coronavirus (COVID-19) and Commercial Property Legal FAQs
Rent Charge Suspensions: Protecting Your Interests
Been Asked to Sign an Employment Settlement Agreement? Seek Advice Urgently...
Services Update: Continuity of Legal Service Provision
Advising You in Uncertain Times
Could carelessness on social media land you in court?
Is an electronic signature on a commercial property document acceptable?
What happens when there is no health & care LPA in place
Social Media Training for Businesses
Information to gather for your probate solicitor
Gazundering, what it is and how to avoid it
Relief from forfeiture – what happens if the tenant forgets to pay the rent?
Not so safe at work - compensation for an accident at work
New organ donation law: giving you control
Running a business from home
Have nude photos of you or your teenager been posted online?
Landowners’ rights and the Electronic Communications Code
Building in your back garden
Christmas is a time for giving (and inheritance planning)
Buying the freehold of your leasehold house
Redeveloping an empty pub for commercial use
Why it takes time to obtain the Grant of Probate
Social Media: The unconscious privacy threat
Is your reputation being threatened?
Making a will after your spouse or partner has died
Interns celebrate completion of internship at solicitors
Selling your home in a flat market, some top tips
Claiming compensation for a serious road traffic accident
New Media and Communications Court list reflects surge in internet defamation claims by Laura Baglow
Has your personal information been shared without your permission?
Planning your escape to the country, what you need to consider – part 2
Government consultation on new national model for shared ownership
Choosing a partnership structure
Planning for what happens when you die by Deborah Adams
Changes to legislation could offer protection for tenants in the private rental sector
Move to the country - Part One
The risks of DIY probate
Will your septic tank still be legal in January?
The death knell for ‘kiss and tell’?
Making a will when you retire
Selling your property at auction
Not looking so good - your guide to compensation for botched non-surgical cosmetic procedures
New threshold of seriousness in defamation proceedings
Legal considerations when building a granny annex
Choosing the right person for your power of attorney
Formal Interviews - Do you need legal representation?
Privacy rights and aerial images
Trustees’ duty to give information to beneficiaries
Five problems with a leasehold property
Taking your first commercial lease
Is your organisation protected from employee social media legal risk?
Have you been targeted by negative social media posts?
Farmers be alert when being inspected
Help for House Sellers?
Don’t let your digital assets end up in a digital grave
Valuing an estate for probate
Development proposals and your local authority search
What can you do if your child is injured in a serious accident
NetRights welcomes new protection for social media users
SHOULD I GET A LAWYER FOR A SPEEDING OFFENCE?
Supreme Court recognises that social media is a “casual medium” in libel battle
Choosing the best conveyancer who is right for you
Making a will after a second or subsequent marriage
Option or promotion agreement – which is best for landowners?
Anonymous pub and restaurant online reviews leave a bad taste
Have you had an accident involving a horse?
Help to Buy – beware of some cracks in the structure
Understanding Lasting Powers of Attorney
Changes to Energy Performance Certificate for Landlords
Had a cycling accident? Your route to obtaining compensation
New year, new home: tips to sell your home in the New Year
Tax Planning for your inheritance
Hearing loss: when your employer may be liable
Buying a home for your retirement, five things you need to consider
Farmers plan to diversify after Brexit
Ministers press ahead with probate fee shake-up - reports BBC News
Botched dental treatment? You may be entitled to compensation
Why a Health and Welfare Power of Attorney is a good idea
Will the new charge on building developments in Cornwall affect you?
Energy Performance Certificates – Do They Matter?
HMRC Challenging Stamp Duty Land Tax Payments
Ben Mitchell qualifies as a solicitor
The potential implications of Brexit on employment law
Appointing a guardian for your children
Houses in multiple occupation – new rules from October 2018
New Agriculture Bill published
Will Brexit affect my pension?
Dreaming of a holiday home? Sort out the legals before putting your feet up
Lasting Power of Attorney by Deborah Adams
Settled status after Brexit by Alexis Hager
How to choose an executor to administer your estate when you die
How overage agreements can boost profits from your land
Top tips for first-time buyers
How Could Brexit Affect My Farm?
Wills & Succession in Spain by Deborah Adams
Brexit – an international and local view by Alexis Hager, Litigation
Capital gains tax - important facts for non-residents of the UK
Buying a home: the importance of making sure the seller is entitled to sell
Changing a will after someone has died: it is possible and it could save you money
Your responsibilities when you have people working in your home
Sad passing of Battle of Britain pilot who served with Parnall family member
Considerations when buying a heritage property
Disciplinary proceedings at work: guide for employers
Employers should have a disciplinary process in place, but just following this may not be enough to avoid falling foul of the law and exposing yourself to the risk of an employment tribunal claim.