Who will make decisions when you no longer can?

Holding hands

Last month, the wife of a man who died in a freak accident spoke publicly about the importance of a legal document that let him "die with dignity". Here Will Aid Solicitor Alannah Macdonald from The Sethi Partnership Solicitors explains why this paperwork – known as a Lasting Power of Attorney – along with the work of the Court of Protection can help protect you in the worst situations imaginable.

When Bradley Visser suffered a severe traumatic brain injury at the age of 38, his wife Annie had to make some very difficult decisions about his medical care.

Although doctors said they could keep the father-of-two alive on a life support machine it was clear that the extent of his haemorrhage meant he would never live life to the fullest.

Thanks to some difficult conversations the couple had shared regarding such a situation, the couple had appointed each other as an Attorney under a Lasting Power of Attorney (LPA) and Annie knew that "If he couldn't be a daddy, if he couldn't go to a rugby match, if he couldn't provide for his family by working and if he couldn't be physically active, he didn't want to be here."

After six days of emergency treatment at the John Radcliffe Hospital in Oxford and a severe case of double pneumonia, Annie made the decision to let her husband go.

He died on 27th July.

Last month, she bravely spoke out about the experience and said it was vital that anyone drawing up a will considered drawing up an LPA.

"I genuinely think if I didn't have this piece of paper, I wouldn't be able to get out of bed in the morning,” she said. “The guilt of having to make a decision with no background knowledge on what that person genuinely wants is actually worse than the end result."

So, what is it and how does it work?

A Lasting Power of Attorney

In simple terms, this document specifies who can take over making important Property & Financial decisions and Health & Welfare decisions for you in the event that you are incapable of doing so for yourself.

It can only be created when your mental capacity is sound, so more often than not people draw them up when drawing up  a will.

There are two types of LPAs: one covering Property and Finances, and the other covering Health and Welfare. A Property and Finances LPA allows your Attorney to manage payments from your bank accounts and potentially sell your Property, whereas the Health and Welfare LPA allows them to make important decisions regarding your Health, such as what care you may require and any medical treatment. It is advisable to have both in place if you wish for both your Property & Financial Affairs and your Health & Welfare Decisions to be taken care of.

An LPA must be registered before it can be used and this costs £82 for each Lasting Power of Attorney.

What happens if I don’t have an LPA in place?

If you lose mental capacity and you don’t have a Lasting Power of Attorney in place, an application must be made to the Court of Protection to appoint someone to act as your ‘Deputy’.

Something to bear in mind is that the Court ultimately decides who the Deputy will be, unlike the LPA process where you have that choice.

In addition to this, getting a Deputy appointed can take several months and it is also much more costly than drawing up LPAs the application fee alone is £385.

A Deputy has broadly the same responsibilities as an Attorney but is subject to far closer scrutiny.

They will be supervised and supported by the Office of the Public Guardian and may regular visits from its Representatives who will ask for a report detailing all income and expenditure for the person they are acting as Deputy for. The court has the power to cancel their Deputyship if it is felt that they are not acting in a person’s best interests.

Which is best?

This is difficult question.

A Lasting Power of Attorney comes with reduced cost, reduced administration and freedom to choose the person you know and trust to make decisions for you.

For someone like Annie, it provided clear guidance of what her husband wanted her to do in the most desperate of circumstances.

However, not everyone has this sort of relationship to rely on.

In this case, a person may prefer the idea of having the Court involved in choosing and checking the person who is making their decisions and reviewing that person’s decisions every year.

Whatever your personal circumstances or preferences, it is sensible to discuss any queries and concerns that you have with a Professional rather than leaving it to chance.

Furthermore, the best time to do this is when you are making a will.

Make a will

Every year we get involved in the Will Aid campaign – a month long drive to encourage people to make or review their paperwork with a Professional Solicitor.

We waive our fees for a basic will and instead, a voluntary donation is made to Will Aid, which then distributes the funds to nine partner charities.

It’s a superb opportunity for people to get an appointment with an expert and consider all their options.