Lawyers in an ageing world
In England and Wales, the role of the attorney is governed by the Mental Capacity Act 2005 and its Code of Practice. By Heledd Wyn
The World Health Organisation states that “between 2000 and 2050, the proportion of the world's population over 60 years will double from about 11% to 22%”. With such a dramatic increase in the population, the requirements of such a population will be many and varied – from health care to financial and social services. So where do the lawyers come in? Estate planning has long been an important part of being a lawyer – organising wills, saving inheritance tax, ensuring assets are correctly distributed to the next generation. However, with increased age may well come increased infirmity and incapacity which bring their own complications and requirements.
A typical scenario might be where an elderly individual with dementia falls and breaks their hip. This necessitates a stay in hospital where it is decided that they are no longer in a position to look after themselves and need 24 hour care. Once they are medically fit to be discharged from hospital, the following issues will need to be addressed:
1. Should they move home with a care package?
2. Is a move into residential or nursing care more appropriate?
3. How will this be funded?
4. What decisions about health care need to be made?
Where the individual retains capacity, albeit reduced, then they will be encouraged to make those decisions themselves – perhaps with the help of friends, family and health professionals. It is to be hoped that they will be able to make decisions that they are, ultimately, happy with and that suit them and their needs.
However, where capacity is sufficiently impaired that a third party, such as an attorney, is required to take over, then this becomes more complicated. For example, does the attorney have the time, knowledge, skills & experience to make decisions about the incapacitated individual. Sometimes people find that they have been appointed attorneys and have been given little guidance as to what this role will in fact mean ‘when the time comes’. Unlike acting as an executor of a will where there is a clear set of instructions how the estate is to be distributed an attorney will be required to try and decide how money should be spent, what property should be bought and sold, what care package is suitable, what health treatment should be administered/withdrawn, whether there is any third party funding and so on. At all times they are required to act as agent for the individual.
In England and Wales, the role of the attorney is governed by the Mental Capacity Act 2005 and its Code of Practice. Anyone acting as an attorney (or Court appointed Deputy) needs to abide by this legislation and act in the best interests of the incapacitated individual. This means that they need to balance the wishes and feelings of the individual for whom they have responsibility and consider the practicalities of a discharge from hospital, arranging appropriate care and managing the financial implications of any new arrangements. If the attorney is a family member, they will be required to do this as well as cope with the emotional strain of an ill relative as well as their finances.
So, where does the lawyer come in? When taking the time to plan for succession planning and inheritance tax, lawyers should also take the time to speak to their clients about their final years. Setting up powers of attorney for financial and health decisions is part of the process. However, as these are extremely powerful documents they should be drafted with great care. Efforts should also be made to ensure that the attorneys, when appointed are fully aware of their obligations and the wishes and feelings of the donor. A power of attorney is of little practical use in the event that the attorney knows nothing about the donor’s affairs.
So a power of attorney can be a really useful document or it can be a burden and this is where the lawyer can assist. Careful planning and taking time at the outset can make the difference between a useful document and one that is simply a burden.
About the Author
Heledd qualified as a solicitor in 2006 and is fortunate enough to work in the UNESCO World Heritage site Bath with Mowbray Woodwards. She has developed her legal expertise to deal with all aspects of estate planning, care and mental capacity. Heledd helps individuals, carers, attorneys and Court appointed deputies to achieve the best possible outcome by providing a full consultancy service. The right advice can often put an end to a lot of uncertainty about the future and Heledd is always happy to discuss ways in which she can help.
Heledd is a fully accredited member of Solicitors for the Elderly and STEP and has been published in industry journals as well as contributing to the 5th Edition of “Elderly Clients – A Precedent Manual” published by Jordan’s