Mental Health, the ticking time bomb
If you believe what you read in the press, we’re all living longer than ever before, and what’s more depressing we’re living longer in ill health.
It’s not a merry topic but if this is true it is more important than ever for people to consider the implications of losing their mental capacity. In the line of work I’m in I find myself asking people more and more if they have even thought about what happens when they get old and maybe not as mentally astute as before.
A will is often last on people’s to-do lists and when they finally get around to meeting with a solicitor to think about the future and what should happen with their assets, it’s often the first time they will even consider provision for their life in mental ill health.
All too often I hear clients say: “I will never go into a care home” and I am left with the task of informing them that if they lose their mental capacity it will not be up to them if they are to go into a care home or if they are to be looked after at home – someone else will decide. The only decision they can make now, is who will be allowed to make that decision.
Start thinking now
It is just over four years now since we saw the change from Enduring Power of Attorney (EPA) to Lasting Power of Attorney (LPA) and my worry is, due to the change, fewer people than before are making powers of attorney.
The initial change saw awkward forms which created confusion and resulted in plain language experts being employed to re-design the then 26 page for and reduce them to a less daunting 11 pages.
The problem with the new regime is not just the increased paperwork but the extra time spent in preparing the documents and advising the client. This obviously equates to extra cost to the client and this can be the reason why LPAs are not created especially in these uncertain economic times. The concern is that by avoiding the cost now is potentially creating a real problem for clients in the future should they lose their mental capacity.
But where does this leave us looking forward?
People losing mental capacity without an EPA or LPA will have to rely on a deputyship order in which an appropriate person is appointed to look after their financial affairs or health and welfare decisions (there are two types).
I believe there are four major problems which arise from this:
- It is lengthy, in my experience on average an application takes between 6 -12 months. This is time when the patient (the person who has lost capacity) has no one looking after their financial affairs. Whilst this may not be too much concern for the patient it is often the cause of great stress to the patient’s family.
- The cost of obtaining a deputyship order can often be four to five times that of an LPA.
- The patient does not get to choose who is going to be their deputy, it may end up being someone they didn’t want making decisions for them.
- A deputyship application is less flexible than an LPA, the Court of Protection (COP) does not like awarding health and welfare deputies which can be appointed under the LPA. The COP have made it clear, and the statistics show, that the COP wish to deal with health and welfare decisions on a decision by decision basis and therefore a fresh application for each decision. This is not practical for the patient’s family and is likely to cost a lot of money.
My worry is that if clients are putting off creating LPAs there is going to be a generation which is fast approaching which will not have provision for their life ahead in which they are not able to make decisions.
This problem isn’t going to just affect them directly, but also the people around them. Such provision surely must be more important to them than making a will which will only come into effect after they have died.
It’s time to stop the mental health ticking time bomb.
Paul Coombs one of the Wills, Trust & Probate team at Myers Lister Price wrote this blog inititally for the Private Client Adviser and he is a regular blogger the Private Client Adviser website.
If you would like more information on the above please contact us on 0845 0738 445 or email firstname.lastname@example.org
Latest MLP Solicitors News
- September 8th, 2014Employment Law Update for the week ending 5 September 2014
- September 3rd, 2014Data protection breaches can result in monetary penalty notices being issued –what are these and how can your business avoid them?
A Monetary Penalty Notice is a notice requiring a data controller to pay a fine set by the Commissioner. The amount of the MPN determined by the Commissioner must not … Read more
- September 2nd, 2014Family Business Succession and Planning.
I’ve recently finished an E-book soon to be published on Family Business succession and planning. One of the key elements of the book is the importance of planning. Planning succession … Read more
- September 1st, 2014Employment Law Update for the week ending 29 August 2014
It’s time for MLP’s quick round up of the key talking points in employment law for the week ending 29 August 2014. News Consultation on closing potential loopholes in the … Read more
- August 29th, 2014The Current State of the Property Market
Where are the regional property hotspots?We’ve witnessed the ongoing growth of the UK housing market in recent months but is it beginning to lose momentum? June saw a rise … Read more
- August 27th, 2014Pre-nuptial agreements are not binding
Although the government is yet to legislate to give pre-nuptial agreements automatic legal recognition in England and Wales, the courts have for several years adopted the position that those who … Read more
- August 21st, 2014Considering selling or merging your PR or Digital Agency?
We act for a significant number of PR and Digital Agencies and from our experience of mergers and acquisitions over the years, I set out the top 6 questions you … Read more
- August 20th, 2014Financial claims are extinguished by decree absolute – Common Misconception
Here is the third in our series of common misconceptions around family law. This week we are tackling the issue of financial claims being extinguished by decree absolute. In a … Read more
- August 20th, 2014Dealing with grief when a loved one dies
“I’ve nothing against death, I just don’t want to be there when it happens….” Woody Allen. Grief is the natural process of reaction and adjustment to loss and change. … Read more
- August 19th, 2014Companies reveal gender pay gap
It’s time for MLP’s quick round up of the key talking points in employment law for the week ending 15 August 2014. Employment law news Just four companies reveal gender … Read more
- August 13th, 2014Steps to avoid bribery when client entertaining
6 Practical steps to help avoid liability under the Bribery Act 2010
1. Top level commitmentAll senior managers and directors must understand that they could be personally liable under … Read more
- August 12th, 2014Employment law update – TUPE and unfair dismissal
It’s time for MLP’s quick round up of the key talking points in employment law from last week and the hot topics included TUPE, unfair dismissal and harassment! Employment law … Read more
- August 12th, 20145 common misconceptions for not making a Will
When it comes to discussions around making a Will, there are many reasons that people give for not having done so already. Here, we correct some of the myths around … Read more
- August 11th, 2014Client entertaining or bribery?
The line between entertaining and bribery is not always obvious and can be very punitive. It is vital for businesses to understand the offences under the Bribery Act 2010 and … Read more
- August 11th, 20145 Common Misconceptions about family law – 2
Fathers have the same rights as mothers When a child is born, the mother automatically acquires “Parental Responsibility” for that child but the father may not. Parental responsibility covers all … Read more
- August 6th, 20145 Common Misconceptions about family law – 1
Over the next few weeks I’d like to share the five Common Misconceptions about family law. The first in our series is on the topic of… The Common Law Wife… Read more
- August 6th, 2014Dragon investment
I read in the paper that a couple of entrepreneurs have landed £50,000 in Dragon’s Den funding for their gourmet tea business. This funding from Kelly Hoppen was for a … Read more
- August 5th, 2014Employment law update – parental leave, tribunals and more
It’s time for MLP’s quick round up of the key talking points in employment law for the week ending 1 August 2014. Employment law news 70% of potentially successful Employment … Read more
- August 3rd, 2014UK estates will pay £530 million in ‘unnecessary’ Inheritance Tax in 2014
- August 3rd, 2014Lucien Freud’s son fails in challenge to £42 million secret trust
The distribution of Lucian Freud’s estate will remain a secret after one of his 14 children lost a High Court bid to challenge the validity of his Will this week.… Read more
- August 3rd, 2014Will claims triple as families choose DIY executors over solicitors