The ‘Incapacity Crisis’ What you can do to prepare for later-life decisions

It is well known that our nation as a whole is living longer. Whilst this is a positive reflection on our access to medical treatment and awareness of healthy living, it does mean that conditions associated with old age are on the rise.

Consequently, it is not surprising to learn that dementia has overtaken heart disease in being the nation’s leading cause of death. A study by the Solicitors for the Elderly (SFE) found that the number of people diagnosed with dementia in the UK increased by 53.4% in just over 10 years. This has led to speculation that the UK is heading towards an ‘Incapacity Crisis’.

With such figures evident, it is alarming to see that an estimated three quarters of the population have not spoken about their finances or personal medical care should they lose capacity. Lakshmi Turner, chief executive of SFE, said: ‘Far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.’

However, sometimes merely having a conversation with loved ones isn’t enough. It is a common misconception that your family will automatically have the authority to act and make later-life decisions in the event that someone loses capacity but this is not the case. Only doctors acting in your best interest have the authority to make final decisions regarding your treatment, with or without the consent of your loved ones. Banks will also often refuse to cooperate with loved ones and will not release funds unless they are registered as an attorney.

However, both of these misconceptions can be dealt with by embedding such requests in a Property & Finance or a Health & Welfare Lasting Power of Attorney (LPA) and vesting your authority in attorneys.

Attorneys under a Health & Welfare LPA make decisions regarding medical care, residential care, where you should live and the like. There is also the opportunity to authorise them to give or refuse authority for life sustaining treatment on your behalf. Attorneys under a Property & Finance LPA make decisions regarding your financial situation and power can be delegated to them to manage investments. The documents provide flexibility when it comes to solidifying later-life wishes and is highly recommended.

It is important to note that once a person loses capacity they will be unable to create an LPA and an application to the Court of Protection is usually the only option. This can be an exceptionally lengthy and expensive process.

To conclude, the SFE recommends the following course of action when preparing yourself for later-life decisions:

•  Think about your wishes – only you know how you would like to be cared for in your later years. Think about your needs and ascertain who you would like to be able to make decisions in your best interests on your behalf.
• Discuss with your family or close friends – Take the step to have the difficult conversation with a loved one for the sake of clarity.
• Finalise with an expert – Anyone thinking about making an LPA should seek legal advice. Although you can prepare them on your own, mistakes made in a LPA drafted at home might not come to light until it is too late. The repercussions of such errors could be substantial and could outweigh the costs of having your document drafted professionally.

Please do not hesitate to contact us should you be starting to think about your later-life wishes. We would be more than happy to meet you to discuss the options available to you.