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No such things as "next of kin": the ever growing importance of Health and Welfare Lasting Powers of Attorney

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The concept of “next of kin” is often misunderstood and misinterpreted.  Contrary to common belief, “next of kin” only exist on death and are those who would inherit if the person in question died without leaving a valid will.  For more information on who this would be see the flowchart here.

Property and Financial Affairs Lasting Power of Attorney

The importance of having a Property and Financial Affairs Lasting Power of Attorney is often well known and easily understood.  Without such a document, if a person were to lose mental capacity there would be no one authorised to manage that person’s finances.  This would result in all bank accounts, including joint accounts, being frozen.  The inability to access funds creates a number of issues, including the inability to pay house insurance and other such liabilities, causing far-ranging and wide-reaching problems.  The issues caused are particularly apparent where the person who has lost capacity has an interest in a business, especially where they have a decision-making role, as this will almost certainly have a severe impact on business continuity.  In order to obtain authority to manage the property and financial affairs of a person who has lost capacity, without prior authorisation within a Property and Financial Affairs Lasting Power of Attorney, it is necessary to apply to the Court of Protection to obtain a Deputyship Order.  This process is lengthy, often taking in excess of six months, during which time the accounts remain frozen, and far more costly with typical fees in excess of £1,500 for a single application.  This is the last thing your nearest and dearest would need if you had lost mental capacity!

Next of Kin

The presumption that “next of kin” have authority to make health and welfare decisions is a long-held misconception.  This can be a particular issue where the person (“the patient”) has lost mental capacity and a decision needs to be made with regard to life-sustaining treatment (care, surgery, medicine or other help from doctors that is needed to keep the patient alive).   Whilst doctors often consult with those closest to the patient before making a decision, the doctor will ultimately make the decision.  This can lead to situations where a person’s life is prolonged against their undocumented wishes.  For example, if the patient had terminal cancer and contracted pneumonia, the doctor may well treat the pneumonia resulting in a longer life but a compromised quality of life. 

Health and Welfare Lasting Power of Attorney

If the patient had put in place a Health and Welfare Lasting Power of Attorney whilst they had mental capacity to do so, the patient could have authorised a specific person or people (attorneys) to make health and welfare decisions on their behalf once they had lost mental capacity to make that decision themselves.  Within the Health and Welfare Lasting Power of Attorney the patient could have given the attorneys authority to give or refuse consent to life-sustaining treatment on the patient’s behalf, rather than the default position of leaving this decision with the doctors.  Depending on the situation, it may be possible to apply to the Court of Protection to make health and welfare decisions where there is no Health and Welfare Lasting Power of Attorney but this is, again, costly and the Court of Protection is extremely cautious in making Deputyship Orders concerning health and welfare.

The importance of putting in place Lasting Powers of Attorney is becoming better known.  In this fast-pace world where accidents resulting in lack of capacity are more common and people are living longer, the need for Lasting Powers of Attorney are ever more frequent and the consequences of not having them more challenging.

Please do not hesitate to contact a member of the Private Client team to discuss matters. Alternatively, e-mail naomiliston@roythornes.co.uk.

 

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