Ageing parents, fearful of denying their offspring an inheritance, are increasingly drawing up lasting powers of attorney (LPA) to enshrine their right to refuse costly care, a Times investigation revealed this week.
As the awareness and prevalence of dementia grows, the number of older people registering LPAs has doubled to half a million over the past two years. Many are doing so because they are fearful of losing all their assets to nursing home providers. Nevertheless, 71 per cent of people over 55 still do not have anything in place to dictate their financial wishes should they lose mental capacity, according to Unforgettable, the dementia specialist.
There are two types of LPA, one for property and financial affairs, and one for health and welfare, which are, says Karon Walton, the director of Solicitors for the Elderly, “arguably the most powerful legal documents an individual can have, because they allow you to pass life-changing decisions about your affairs on to a third party”.
She urges those registering an LPA to keep in mind that it should represent your own best interests, not just those of family members.
An LPA is drawn up while you still have the ability to make decisions about the future. You, the “donor”, can nominate one or more “attorneys” to take on your affairs when you wish them to do so. If you fail to have an LPA in place when you lose mental capacity, family or friends will have to apply for the court of protection to look after your money or health — a costly and potentially stressful process.
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“You can outline your wish to refuse certain care, such as life-sustaining treatment, in your LPA, but if you do lose capacity, doctors and attorneys are still required to act in the best interests of the individual,” says Ms Walton. “An attorney cannot refuse care or treatment on their behalf for financial reasons, even if they know this is what the individual wanted.”
Peter King, a partner at the law firm Nockolds, says the nominated attorney must always act in the donor’s best interest, but can refuse life-sustaining treatment provided that the donor has specifically delegated that authority.
“In our experience, most people who choose to appoint health and welfare attorneys do delegate the ‘life-sustaining treatment’ power, but the reason for doing so is rarely expressed to be on economic grounds,” says Mr King. “Paying for care would fall within the responsibility of a property and affairs attorney [who could be a different person from the health and welfare attorney]. The donor’s best interests are the main priority, not the possible inheritance of a family member.
“Any decision to refuse expensive care would have to satisfy all the core principles of the Mental Capacity Act.”
There are several ways of drawing up an LPA, including doing it yourself via the website for the Office of the Public Guardian. This is the cheapest option, costing £110 to register, a process that should take eight to ten weeks after you have drawn it up, provided that there are no mistakes in the application. As soon as the LPA is registered it is activated and an attorney can start to take control of your money or care, unless you specify otherwise in the application.
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Solicitors for the Elderly, however, believes that, unless you are very confident, doing the application without legal support can result in “elementary mistakes, rendering them ineffective”, and is more likely to leave a donor open to fraud or coercion.
“Once an LPA has been registered there is little to stop a determined attorney from financially abusing a vulnerable or incapacitated donor,” says Gary FitzGerald, the chief executive of Action on Elder Abuse.
“The Office of the Public Guardian’s online tool does not sufficiently address, warn against and prevent the misuse of LPAs.”
If you don’t want to pay for solicitors’ fees, but would like some legal guidance, Unforgettable’s new tool allows you to draw up an LPA, with guidance from its legal professionals, at no cost other than the £110 Office of the Public Guardian fee (unforgettable.org/lastingpowerofattorney).
You can pay an additional £79 to have your form checked and submitted on your behalf if you are nervous about making mistakes.
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The service is the first that is designed to be dementia-specific and includes a “letter of wishes”, which highlights suggested topics for discussion between the donor and their family, such as different options relating to drugs and medication, and who should take on intimate tasks such as washing.
Ian Lane, the private client partner at Hodge Jones & Allen, says those who want to outline preferences about the withdrawal of treatment should set them out in an advance decision document, the nearest thing we have to the US concept of a living will. He says: “The advance decision sets out in more detail the circumstances where an individual wishes their attorney to exercise the power to withdraw life-sustaining treatment and thus allow them to die. This gives you the flexibility to make changes as and when you wish. In contrast, once an LPA is registered, the guidelines and preferences set out in it are somewhat set in stone.”
Mr Lane says any decision of this kind should only be made with medical professionals.
