Will a normal Power of Attorney be sufficient if I have to go into hospital?
The coronavirus pandemic has made many people consider what legal steps they might need to take in the event they end up in self-isolation unable to sign documents, or are required to go into hospital, either on a ventilator in intensive care or ending up in a coma.
If you are hospitalised as a result of the coronavirus (or for that matter, any reason), there are a few simple steps that can be taken to safeguard your own interests and those of your family.
Powers of Attorney enable your attorneys to make decisions on your behalf if you cannot.
They are usually used in cases where an individual loses mental capacity but because a person can lose capacity and regain capacity, they are particularly useful while in hospital where there are many situations that could cause a person to be temporarily without capacity such as an induced coma.
There are a few different types of Power of Attorney and you need to consider, which would be the most suitable in accordance with your own circumstances.
Lasting Powers of Attorney (LPAs) give you, as the donor, the choice of attorney to make decisions on your behalf if you can’t.
An attorney could be a close friend or family member who you would trust to make decisions on your behalf or someone independent such as a solicitor. Typically, you would appoint two attorneys, but you could have more. The authority could be for them to make decisions together or some decisions individually.
Health and Welfare LPAs
If you were in hospital, a Health and Welfare LPA allows attorneys to make decisions about your medical care including life-sustaining medical treatment in addition to the more regular decisions such as your daily routine such as washing, dressing and eating. In the absence of an LPA, such decisions could be made by the NHS, which may disadvantage your family and friends, for example if the NHS wanted to move you to a different hospital several miles from where you live. Attorneys are also able to make decisions about whether you should be sent to a particular nursing home.
If you are worried about losing mental capacity through illness or traumatic illness, then a Health and Welfare LPA is essential for your loved ones to be able to make decisions on your behalf. These decisions include medical decisions and can also include life-ending decisions such as stopping medication or turning off life support machines. Sometimes they therefore are decisions doctors cannot make or would not know your preference as well as someone who knows you well.
Property and Affairs LPAs
A Property and Affairs LPA allows your attorney to make decisions about your personal finances and affairs even if you have not lost capacity but are simply unable to look after your own finances or affairs, for example while in hospital. They allow attorneys to transfer cash between your bank accounts to enable the payment of regular outgoings, which they can also effect on your behalf.
If you own or run a business you may need a Business LPA with the attorney being a co-owner, which is really like a Property and Affairs LPA drafted with your business needs in mind, with different attorneys who are more able to look after your business affairs than your friends and family.
Court of Protection
If you cannot make decisions for any of the reasons set out above, and have not made an LPA, an application to the Court of Protection to make decisions on your behalf or determine practical solutions may well be required. This process is expensive, takes at least six months to instigate and the Court may appoint someone who you would not have chosen.
It is therefore advisable to put in place LPAs while you are able, and before any emergencies when your family or friends will need them to help you.
Of course, no matter what stage of your adult life you are at, it always makes sense to have a Will. A Will enables you to leave your estate to the people you choose such as family and friends. In the absence of a Will, your estate is divided in accordance with the law of intestate, which means that the people you love most could miss out completely. In addition, a properly drafted Will can save the beneficiaries paying inheritance tax on your estate and save them thousands of pounds which might otherwise just be paid to the state in tax.