During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.
Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.
We will bring you a question and answer per day for the next few weeks.
Q – If I have to go into hospital and need medical decisions making on my behalf as I am unable to do so, surely it will be the case that my family will be able to do that for me, I don’t need any extra legal intervention?
A – Should any medical treatment decisions need to be made whilst you are in hospital, then the starting point is that you should be the person to make those decisions. You are always assumed to be able to make your own decisions unless it is established otherwise.
Should you become physically or mentally unwell, to the point where you cannot make your own decisions or you cannot communicate those decisions, you may be deemed to have lost mental capacity. In this situation, no one has the authority to make health and welfare decisions for you. Doctors will make a decision based on your best interests. Whilst they may consult your family members, ultimately the decision will remain in the hands of the medical professionals. This can cause friction and upset if your family do not agree with the decision of the hospital staff. It may, in serious cases, result in an application to the Court of Protection.
If you have lost capacity, then medical professionals will try to ascertain whether or not you have a lasting power of attorney (LPA) for health and welfare. An LPA is a document which allows you to appoint an attorney or attorneys to make decision on your behalf, as if they were you. It can cover a wide range of health and welfare decisions from daily routine and diet, to arranging social care and support and decisions regarding life sustaining treatment. If you were in hospital, it means that your attorneys could speak to the doctors and medical staff on your behalf and ensure that your wishes are carried out.
You may have signed a “living will” or advanced decision. This document allows you to describe a range of medical treatments you would not want doctors to give you, if a time comes when you lack capacity. If made correctly, an advance decision will be legally binding. However, advance decisions are very restrictive. If the medical decision to be made does not exactly match the description in the advance directive, then it will not apply. We would, therefore, always advise clients to make an LPA for health and welfare, which are much more flexible and allow decisions to be made in accordance with the particular set of circumstances which have arisen.
We recognise the concerns of many clients in making sure their personal affairs are in order in these unprecedented times. We have designed a pack specifically for clients who want to make both a will and LPA at a discounted rate but, due to COVID-19, if they are unable to leave the house. If you would like details of this free pack, please email us at info@sintons.co.uk.
* For advice on this or any other private client matter, please contact Paul Nickalls, head of the wills, trust and probate department at Sintons, on paul.nickalls@sintons.co.uk or 0191 226 3640.
