Planning for elderly care and end of life

A recent IPSOS Mori survey carried out on behalf of the Office of the Public Guardian, a government body, found that emotional barriers were responsible for 40% of UK adults not planning for their elderly care.

These included beliefs such as superstition that preparing for old age would increase the chance of something detrimental happening sooner, as well as reluctance to accept that accidents might happen that would lead to loss of mental capacity or death.

29% of adults cited relevance barriers – experiences or assumptions that made the person believe that preparation was not necessary.

No automatic rights of decision making about care

A widely held belief was that spouses, family members and possibly even friends can automatically take over looking after your financial affairs if you no longer are able to do so. This can also extend to thinking that decisions about care and health can also be made by close relatives.

This assumption, however, is incorrect. Often those people who step in to help find out too late.

The law, under the Mental Capacity Act, states that if you have not formally nominated one or more people to provide help and make decisions for you by creating a lasting power of attorney (abbreviated to LPA) or an enduring power of attorney (if made before 2007) and you lose the ability to make decisions for yourself, only a judge in the Court of Protection can appoint helpers for you.

The process of applying to the Court of Protection to become a deputy (someone who can legally make decisions for someone else) is costly, but crucially time consuming, at a point in your life when it is important that decisions are made quickly to give you the best outcome.

To emphasise, even an immediate family member such as one of your children or your husband or wife has no legal rights to help you if they are not nominated as an attorney in a lasting power of attorney document.

Having a will is not sufficient

A will deals with what happens after death. It sets out how you would like your remaining possessions to be distributed once your debts have been repaid.

It doesn’t deal with what should happen while you are alive but unable to make decisions for yourself. A lasting power of attorney does this.

Don't be caught out by leaving it too late

There is a belief that while the sun is shining, nothing needs to be done. Until the weather turns – when a long term illness is diagnosed for example – is it the time to put legal documents in place.

However, sudden accidents can happen that leave you alive but unable to care for yourself. Predisposition to strokes for example, is rarely diagnosed before a stroke happens.

You need to have mental capacity to make both a will and a power of attorney. If you die without having made a will, you don’t get to choose who inherits your possessions. If you become mentally incapacitated, then you can’t choose who makes decisions about your care or your finances or guide someone in those choices.

Even people who have been diagnosed with dementia or a life threatening illness put off making these important legal documents. Often the reason is that there is still time because the illness is gradual to take effect. However, the tipping point at which they become needed can come much sooner than expected.

An "insurance policy"

Planning for elderly care and death is about being prepared for the worst in the hope for the best. It can be thought of as insuring yourself should something bad happen.

It isn’t enough to give family members your debit card PIN so that they can withdraw cash for you and pay your bills.

Firstly, if someone did take out your money without being an attorney, they would be breaking the law.

Secondly, long term care is much more than just financial management. There are questions to consider such as where would you live, what would you eat and what types of care do you want. Your close family and friends have no automatic right to make these decisions for you. If no-one else can, then a social worker will, and he or she may not make the same decisions as you would have done.

Taking control, not losing it

The last barrier that prevents people from planning for old age is a fear of losing control over normal decisions. Fear of undermining or offending a family member can often stop a discussion from taking place about what might happen in the future.

Planning is not about losing control, but rather gaining control. If nothing is done, then control will certainly be lost. If you act and make both types of lasting power of attorney and a will, you can decide:

  • who makes decisions for you
  • about what
  • and in what way

What you can do now

Planning for elderly care is important. It needs to be done as soon as possible.

Net Lawman offers will templates for download and an online will writing service, both for free.

We also offer a free lasting power of attorney service in conjunction with Unforgettable.org, a leading retailer of dementia related products and services.

Using these tools, you can have peace of mind that if something were to happen in the future, whether you die or remain alive, you stay in control.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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