Member Article

Darlington solicitor warns of incapacity crisis following new report

Latimer Hinks, a Darlington-based law firm, is urging members of the public to consider the legal implications of becoming incapacitated following a recent report from Solicitors for the Elderly (SFE).

The report, The incapacity crisis: a nation unprepared, polled 1,977 adults across the UK, and found that almost 99% of people in the North East have not made necessary provisions, should they lose capacity from conditions like dementia. A further 41% admitted to having made no provisions at all for later life, including a will, pension, funeral plan or lasting power of attorney.

Natalie Palmer, a Solicitor and Director at Latimer Hinks, explains: “We see financial Lasting Power of Attorney (LPA) instructions quite frequently, but less frequently do people consider making health and welfare LPAs. They were introduced in 2007, and are essential if an individual wants to ensure their health and welfare wishes will be carried out should they become mentally incapacitated.”

The study found that 62% of people believe that their next of kin can make health and welfare decisions for them if they are no longer able to and 63% of people believe that their spouse has the power to do so, however this is not the case. These decisions are out of a loved one’s hands if a registered health and welfare LPA is not in place.

In the North East, slightly more than 1% of adults surveyed by SFE had a health and welfare LPA in place.

Natalie continues: “Ultimately, if there is no legal instruction in place, any health and welfare decisions will be taken by social services or doctors, depending on the decision required, and this will be what is considered best for the individual, regardless of their own wishes. This can result in people being taken into care when their preference was to remain living at home, or to be kept on life support when they would not choose that for themselves.

“If you have capacity, you make these decisions for yourself, even if others may deem them to be unwise, but if not, and if you have made a health and welfare LPA your attorney can step in to make a judgement for you. It is essential that you have conversations with your family and attorney or attorneys, so they understand what you want, should you become incapacitated.”

There are currently 928,000 Health and Welfare LPAs registered with the Office of the Public Guardian (OPG) across England and Wales, compared to the 12.8 million people aged 65 or over who run the risk of developing dementia; a difference of almost 93%. If this trend continues, by 2025, 15.2 million people will be at risk of mental incapacity and an estimated 2.2 million health and welfare LPAs will be in place, meaning the health and welfare wishes of 13 million people will not be taken into account.

Natalie says: “As a result of this report, SFE is urging the nation to act now to avoid this incapacity crisis by planning ahead in case of mental incapacity. At Latimer Hinks, we advise clients to make LPAs when making wills, and we explain why it is important and what the implications can be. We also tailor health and welfare LPAs to each individual’s needs and offer side letters to give guidance to attorneys when making those difficult decisions. LPAs are like insurance policies that you hope you never need, but make anyway ‘just in case’.

“We fully support the SFE campaign, which calls on people to act now and start a conversation with loved ones about end of life topics to remove the stigma surrounding the discussion. Although no-one wants to consider that they may have to live with a condition like dementia, it is important that a person’s wishes are clear, just in case action is required.”

Lakshmi Turner, Chief Executive of SFE, said: “Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so.

“Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.

“It’s time to set the record straight. 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.”

This was posted in Bdaily's Members' News section by Andrew Douglas .