Rosie Watson advises planning ahead for a time when we may not be able to manage our own affairs

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Paying bills, buying clothes, making gifts, writing cheques, and signing forms are all things we take for granted.

It’s not just a question of how our financial affairs would be managed if we could no longer perform these simple tasks, but how we would be like to be cared for physically that we need to consider.

Anyone, at any age, can become physically or mentally incapacitated through illness or accident and, if plans are not in place beforehand, family and friends will not be able to pick up the mantle and make decisions for us.

In the absence of legal documents, signed when we were of sound mind, medical teams will decide what’s in our best interests physically and the family has no alternative but to apply to the courts, who will appoint someone to run our financial affairs.

This option is expensive and time-consuming and can be hugely distressing; therefore it is important to give serious consideration to granting a power of attorney which will survive beyond the time when we are capable of making our own decisions.

England and Wales

The Mental Capacity Act 2005, which came into force on October 1, 2007, replaced the Enduring Power of Attorney (EPA) with the Lasting Power of Attorney (LPA) in England and Wales.

This document comes in two quite separate parts – the Property and Affairs section and the Personal Welfare section.

The old EPA could be used immediately and did not need to be registered unless and until the donor lost capacity. It was for property and affairs only and did not allow a Personal Welfare power to be created.

It’s important to remember that any EPA signed before October 1, 2007 remains valid. An existing EPA can be used, unregistered, while you still have mental capacity provided you consent to its use.
If you start to lose mental capacity to manage your finances, then your attorneys are under a duty to register your EPA with the Public Guardianship Office.

In contrast, the Property and Affairs or Personal Welfare LPAs must be registered before they can be used.

Scotland

The Adults with Incapacity (Scotland) Act 2000, which came into force on April 2, 2001, created the Continuing Power of Attorney (CPA) and the Welfare Power of Attorney (WPA) – similar to the LPA in England and Wales. Before then, it was only possible to create the CPA and, if this was signed before April 2, 2001, it does not need to be registered straight away.

As the name suggests, it continues to be valid if and when the donor loses capacity, at which time it must be registered.

CPAs and WPAs signed after April 2, 2001 must be registered with the Office of the Public Guardian before they can be used.

In addition, a WPA that was signed after October 5, 2007 intended to be used only after the donor becomes incapable must contain a statement that they have considered what criteria they wish to be used in determining their capacity.

Northern Ireland

The Enduring Powers of Attorney (Northern Ireland) Order 1987 created the EPA and, to date, this has been retained in Northern Ireland. The EPA can be used immediately it is signed by the donor and, provided that is the intention, will remain valid if the donor loses capacity. At that point, it must be registered with the Office of Care and Protection.

If you wish to allow someone to continue acting for you after you become incapable of managing your own affairs, you will need to create an EPA.

This gives someone else (the attorney) the legal right to manage your financial and property affairs only. This single power is in two parts: the first gives an ordinary power of attorney, as narrow or wide as you wish, and the second states that when you no longer have mental capacity to deal with your affairs, the attorney will continue to act for you.

It does not apply to any matters associated with your welfare. You can, if you wish, state that you will continue to manage things yourself until you no longer have the mental capacity to do so, which means your attorney will take over only if and when you lack the capacity to make decisions for yourself. At that point, the power must be registered at the Office of Care and Protection.

Property and Affairs LPA (England and Wales)
Continuing Power of Attorney (Scotland)

You can make a Property and Affairs LPA or a CPA to enable someone you trust (the attorney) to take decisions on your behalf about your property and affairs, either now or at a time when you are no longer able or lack the mental capacity to take those decisions yourself.

This can include paying your bills, collecting your income and benefits or selling your house, subject to any restrictions or conditions you might include. It can only be used once it has been registered at the Public Guardianship Office (PGO) or the Office of the Public Guardian (OPG).

Personal Welfare LPA
(England and Wales) Welfare Power of Attorney (Scotland)

A personal welfare LPA and a WPA will allow whomever you have chosen as your attorney to make decisions on your behalf about your personal welfare – for example, where you live and who will take care of you.

It can include allowing the attorney to give or refuse consent to medical treatment. You have to fill in the form appropriately if this is the option you require.

If you state you do not want a specified life-sustaining treatment to be given at a future time, the LPA or WPA giving the attorney the decision-making power will invalidate any previous Advance Decision or Living Will refusing treatment.

An Advance Decision made after the Personal Welfare LPA or WPA would supersede these documents and be binding on your attorney. A Personal Welfare LPA or WPA can only be used once the form is registered and you have become mentally incapable of making decisions about your own welfare.

Certificates must be provided for LPA, CPA and WPA to show the donor fully understands exactly the consequences of signing the document, and that no fraud or undue pressure has been used. Doctors and lawyers are entitled to charge a fee for providing the certificate.

In England and Wales, the LPA must have a Certificate Provider’s Statement. This has to be given by someone who has known the donor for at least two years or is a person specified in a long list including police officers, librarians and MPs.

Only one certificate is required if someone is named in the LPA as the person to be notified when the application to register it is made. If no person is to be notified, two people must provide a certificate.

In Scotland, the CPA and WPA must include a statutory certificate, in the prescribed form, signed by a Scottish solicitor, a practising member of the Scottish faculty of Advocates or a doctor.

Do you need a solicitor?

Some people are more comfortable having legal documents prepared by a professional lawyer. That said, the forms for these Powers of Attorney spell out exactly what is required to create valid, legal documents and so it is possible to fill them in without the help of a solicitor.

Forms for all types are available from the relevant website except for the Northern Irish EPA. These are not readily available other than from a commercial website which will charge around £40 for completion online. Solicitors in Northern Ireland will not charge much more for preparing this very simple form.

You will need time to read the forms through, perhaps several times, think about what your wishes are, ask a trusted friend or family member if they are willing to act as your attorney (more than one?) and you will need to decide who will provide the certificate(s).

You would have to do all of this anyway in preparation for a visit to a solicitor.

If you don’t feel able to complete them alone then ask a friend to help. If you make a mistake, the office responsible for registering them will reject the forms and you will have to pay an additional fee to submit them again.

A local charity may be able to help you and the larger charities have straightforward information available on their websites to assist with filling in the forms.

What’s the charge if a solicitor prepares it?

Costs vary widely if you take on a solicitor to prepare the document.

The Northern Irish EPA is straightforward and a solicitor will charge a modest £50 to £70. The LPAs, CPA and WPA are much more complex and time-consuming to prepare, and a solicitor will charge between £300 and £500 for each of the two powers, usually offering a reduced fee of £500 to £800 for both prepared at the same time. It is important to ‘shop around’ as some smaller law firms may be prepared to reduce their charges for clients on a limited income.

Advance Decision (Living Will)

Before the introduction of Personal Welfare LPA and WPAs, making an advance decision was the only way to make your wishes known about your medical care if you could no longer participate in the decision-making process.

Although you could say what you would like to be done – for example, “I wish to be given all possible treatment to keep me alive” – only refusal of treatment is legally binding on medical staff.

Making an advance decision is still an option but since the Mental Capacity Act came into force, valid advance decisions have been formalised. Age Concern’s website has very useful sample advance decisions and helpful information: (www.ageconcern.org.uk).

It describes the requirements for a valid advance decision, which include specifying the treatment to be refused and the circumstances in which it would apply.

Advance decisions refusing life-sustaining treatment must be in writing – although it can be written by a family member, recorded in medical notes by a doctor or on an electronic record; they must be signed and witnessed and include an express statement that the decision stands “even if life is at risk”. Even then, an advance decision might not be followed by a doctor where there is evidence that the person may not feel the same way about the earlier decision or they have been treated under the Mental Health Act.

The dilemma

People make advance decisions to refuse medical treatment in the hope that if they do not have the capacity to take that decision when the time comes, their wishes will be followed.

For those who retain capacity, the issues are different and many of us hope that if life becomes intolerable we will be able to end it in a dignified way.

Choosing to end one’s own life when illness or infirmity makes carrying on too big a burden is considered by many to be a personal decision and not the business of doctors, lawyers or the state.

Although this view is rejected by many faith groups and disability campaigners, wider society seems to accept it is the right of the individual, faced with what they believe will be an intolerable death, to die at the time of their own choosing.

However, this option is risky for those so incapacitated that they need help to end their lives. Debbie Purdy, who has a progressive form of multiple sclerosis and wants to know if her husband will or will not be prosecuted if he helps her to end her life, is one of those keen to see the law on assisted suicide clarified.

On the face of it, the law is quite clear. Section 2(1) Suicide Act 1961 (applies in England, Wales and Northern Ireland) provides:
A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction or indictment to imprisonment for a term not exceeding 14 years.

This applies even if the suicide occurs outside the UK. (Suicide itself was decriminalised in 1961.)

Dignitas

More than 100 people have gone to Dignitas in Switzerland, where assisted suicide is legal, and in almost all cases have been assisted by friends or relatives.

To date, however, although several people have been arrested and questioned on their return, not one prosecution has been brought.

The parents of rugby player Daniel James, paralysed in a training accident, who reluctantly accompanied him to Switzerland to end his life, were arrested and questioned by the police but not charged. The Crown Prosecution Service said there was enough evidence to prosecute but, on balance, it would not have been in the public interest.

The Director of Public Prosecution’s spokesman says: “There must be enough evidence to provide a realistic prospect of conviction. If the case does not pass that evidential stage, it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, consideration must be given to whether a prosecution is needed in the public interest”.

Taking the law into their own hands

Kay Gilderdale recently helped her daughter, who was suffering from an extreme form of ME, to end her life. The young woman had repeatedly said that she no longer wished to live but was too incapacitated to commit suicide unaided. Kay was charged under the Suicide Act and pleaded guilty to assisting her daughter to die. The court delivered a suspended sentence and she walked free.

In contrast, Frances Inglis was charged with murder and given a life sentence (to serve nine years) for the murder of her adult son who had been severely brain-damaged in a road accident.

No one was in any doubt that Mrs Inglis was a distraught mother who, with compassion for the plight of her son and “with love in her heart”, had acted in what she thought was his best interests.

The difference between these two cases seems to lie in the fact that Tom Inglis was not in a position to make his wishes known. His injuries were so severe that communication was virtually non-existent.

Clarification of the law

Last summer, in the Debbie Purdy case, the House of Lords ordered the Director of Public Prosecutions (DPP) to clarify the situation in which someone would or would not be prosecuted for helping another person to end their life.

In September 2009, the DPP Keir Starmer QC announced an interim policy and a three-month consultation period, following which the guidelines would be further amended.

When the consultation period ended in December, 4500 responses to the interim policy had been received.

In September the DPP said: “I am clarifying those factors of public interest which I believe weigh for or against prosecuting someone for assisting another to take their own life.

“Assisting suicide has been a criminal offence for nearly 50 years and my interim policy does nothing to change that.

“There are also no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take.”

The DPP’s Assisted Suicide Policy was published on 25 February. Keir Starmer said: “The policy is now more focused on the motivation of the suspect rather than the characteristics of the victim. The policy does not change the law on assisted suicide. It does not open the door for euthanasia. It does not override the will of Parliament. What it does is provide a clear framework for prosecutors to decide which cases should proceed to court and which should not.”

The Policy for Prosecutors makes it clear that the critical element is the motive behind the suspects’ act. “If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit (e.g. an inheritance) will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on it’s own merits and its own facts”.

Mrs Purdy is delighted.

The debate

Matthew Parris, journalist, broadcaster and former Conservative MP, is passionately against what he calls “an assisted suicide Act”, seeing it as having the potential to lead to state regulation of death.

Writing in The Times, however, he made it clear that in some circumstances he is prepared to take his own life, stating

“if nature does not do the job in a timely

manner, I shall consider it a duty to take matters into my own hands”.

He is drawing attention to the difference between personal choice and state control through guidelines, policy and legislation which, he believes, taken to its logical conclusion, could lead to state certification for the right to die.

Sir Terry Prachett, who delivered the Richard Dimbleby lecture in February, disagrees. Diagnosed some time ago with early-onset Alzheimer’s disease, Sir Terry suggested a tribunal could hear the case for people who want to end their lives, weigh up the facts and decide whether or not to issue a licence which would protect anyone assisting in that death.

Baroness Findlay dissents from this view, arguing that even with a tribunal system there would be potential for coercion by those who might benefit financially from the death and that feelings on the matter of ending one’s own life fluctuate.

Opinion polls conducted for BBC TV’s Panorama indicated 73 per cent believed family members should be able to help someone who is terminally ill to die. However, when asked their opinion on a case of pain and suffering but no terminal illness, that figure dropped to 48 percent. In such cases 49 per cent would like to see a prosecution.