In law, adopted children are regarded as having been born to their adoptive parents. The Family Division of the High Court recently considered whether that fact precluded a parental order being granted under the Human Fertilisation and Embryology Act 2008...
More and more people are living longer than ever before, but with the benefit that this brings there is also the real risk that as you become older you may become physically or mentally infirm increasing the likelihood that you may need help with matters relating to your finances, health care and welfare. These are not just issues for people in their later years to be concerned about. There are many sad instances where young adults have also lost mental capacity through accidents or illness. A LPA made whilst you are mentally capable can help with such issues if and when they arise.
Sadly we find that many people do not make LPAs at all or leave it until it is too late to do so.
In this article I have provided some examples of what can go wrong when an LPA has not been made. In order to preserve client confidentiality, names and details have been anonymised.
A. The Elderly Married Couple
Jane lives at home with her husband Brian. They have one adult daughter Wendy to whom they are very close. Jane had always wanted to live in her own home with her husband for as long as possible. After Jane suffered a sudden unexpected illness it was considered that Jane was no longer mentally capable of deciding whether she should remain in her own home or go into a care home. Jane had not made a Health and Welfare LPA and as a result Social Services decided that Jane should go into a care home rather than remain in her own home with a support package in place. If Jane had made a Health and Welfare LPA whilst she was mentally capable appointing her husband and daughter to be her attorneys then they (rather than Social Services) would have had the power to take the decision as to whether it was in Jane’s best interests to stay in her own home or not. Without the Health and Welfare LPA the husband and daughter had no legal entitlement to make that decision.
B. The Middle Aged Married Couple
Richard had an unexpected and sudden illness resulting in him permanently losing mental capacity to deal with his property and financial affairs. Richard was forced to move into a care home on a permanent basis. Richard and his wife Alison jointly owned their home.
Prior to his illness Richard and Alison had been planning to sell their home and move to a smaller more manageable home nearer to their children. Neither Richard nor Alison had made LPAs. As Richard no longer had mental capacity to sign the legal paperwork to enable the sale and purchase to proceed, two applications to the Court of Protection had to be made, firstly to enable the sale and purchase to proceed, and secondly to have both Alison and Richard’s children appointed as his Deputies. These Court applications took many months and with court fees, medical report fees etc. the costs were very expensive. In the meantime, pending the Court Orders being made, Alison could not proceed with her move and what with the sudden deterioration in her husband’s health and the various legal hoops to be jumped through this understandably caused her considerable stress. Had Richard made a Property and Financial Affairs LPA whilst he was mentally capable there would have been no need to apply to the court at all and Richard’s attorneys could have signed all the legal paperwork for the sale and purchase enabling Alison to move when she and Richard had originally intended and without all the additional expense and delay. Alison has now made both a Property and Financial Affairs LPA and a Health and Welfare LPA as the last thing she wants is for these problems to arise again should her health decline in the future.
C. The Business Man
Peter (aged 36) ran his own business. Peter had a car accident leaving him in a coma. No longer able to manage his own affairs, his family needed access to Peter’s business and private accounts in order to keep the business running. They were unable to do so as Peter had not made a Property and Financial Affairs LPA. His family therefore had no ability to access these accounts or run his business for him. Thankfully Peter made a quick recovery and regained mental capacity within a relatively short time but had he not done so then his business would probably have not survived. If Peter hadn’t regained capacity so quickly then one of his relatives would have had no alternative but to apply to the Court of Protection for a Deputyship Order (a very expensive process) to enable them to deal with Peter’s business and personal finances. An application of this type often takes six to eight months to complete. During this time, no one else would have been able to run the business, pay employees, deal with contracts etc., resulting most likely in the business failing, with catastrophic consequences for Peter, his family and employees.
These examples show some of the things that can go wrong when you haven’t made a LPA. We assist and advise many clients about making LPAs and in particular the pitfalls that may otherwise befall those people who make them without having first obtained proper legal advice. If you would like to make a LPA, or receive further advice, then please contact one of our specialist Solicitor for the Elderly accredited lawyers on 01752 665037. In many cases we are also able to offer home visits.