Last month The Times, The Express and The Sun ran articles on the looming incapacity crisis which has been reported by Solicitors for the Elderly. The articles highlight the common misconception that next of kin can make decisions for their loved ones in the event they lose capacity.

The focus has been on Health and Welfare Lasting Powers of Attorney’s  (LPAs) and how it is important to have an open discussion about future illnesses and possible incapacity. Their research has found that over three quarters of us have not spoken about, or even considered, our personal medical and care wishes in the event that we lose capacity.

There have been a number of interesting statistics published in the Solicitors for the Elderly report for example 65% of people believe their next of kin can make their medical and care decisions for them, should they not be able to when actually only doctors acting in your best interest have the authority to make the final medical and care decisions for you, with or without the consent of your spouse/relatives, should you not be able to make them yourself. Any disputes will be referred to the Court of Protection.

To ensure your wishes around medical treatment, care and living arrangements are adhered to, should you lose capacity, a Health & Welfare LPA is vital. Family members must apply for a Court of Protection order for the right to make best interest decisions on your behalf when no LPA is in place. This type of order can take 4-6 months to complete and securing one can be a complicated process. Health and welfare orders appointing a deputy are very rare and it is estimated that at least 90% are not approved. This is because the scope of health and welfare decisions is much wider than for property and finance and so more often, the court will assign power over only one specific issue rather than giving a general health and welfare power.

If you would further advice on making a Lasting Power of Attorney contact us today.

* SFE report – The incapacity crisis – a nation unprepared – July 2018

* Centre for Future Studies: The UK incapacity crisis – current & future perspectives, May 2018