Our Elderly and Vulnerable team answers your EVCU FAQs…
How do you report a vulnerable elderly person?
The best starting point is to contact your local authority safeguarding team. You can make a safeguarding referral if you think someone is at risk of harm or abuse. Referrals can be made online or by phone by anyone, and can be anonymous. If the vulnerable person is not at risk of harm but needs care, the local authority can similarly be contacted to conduct a ‘Care and Needs’ assessment.
What is a Living Will?
A Living Will is a non-binding statement of your wishes and preferences for the future. These are often confused with Advance Decisions, which are clear and specific wishes relating to particular medical circumstances and which are legally binding if properly completed. Advance Directives are similar documents that were created before 2007 and which will remain legally binding if they fulfil the requirements of an Advance Decision.
Lasting Power of Attorney – What is it?
A lasting power of attorney is a legal document that allows you to choose people you trust to make decisions on your behalf if you become unable to make them for yourself. There are two types: one which covers decisions about your property and finances and one for decisions about your health and welfare.
Living Will vs Lasting Power of Attorney – what is the difference?
A Living Will is an expression of your wishes and does not carry any legal authority. A Lasting Power of Attorney authorises the people you have chosen to be able to make decisions for you and to speak with your voice. You can choose to put your wishes or binding conditions into a Lasting Power of Attorney. A health and welfare Lasting Power of Attorney would overrule any previous Living Will if the two were not consistent with each other.
What is Mental Capacity?
This is the term used to consider whether a person is able to process relevant information in order to make a decision. Mental Capacity is time and decision specific. This means you must be able to understand the information relevant to a specific decision at the time that the decision needs to be made. The general test for Mental Capacity is found in the Mental Capacity Act 2005.
What is the difference between Power of Attorney and Deputyship?
A Lasting Power of Attorney is a document you make while you have the ability to understand it. It allows you to choose people you trust to make decisions if you become unable to make them in the future. In contrast, Deputyship is the name of the process of applying to the Court of Protection to choose a person to make decisions for you if you did not make a Lasting Power of Attorney while you were able to. Which process is available depends on a person’s Mental Capacity.
Who can apply to be a deputy?
Anyone can apply to act as a Deputy, provided they are over 18, do not have any criminal convictions and have not been made bankrupt or subject to an IVA. It is important to consider whether you are able to act and make decisions objectively as a Deputy. If not, you may have a conflict of interest and it may not be appropriate for you to apply for yourself. You could consider appointing an independent professional Deputy instead.
How long does it take to get Deputyship?
This varies depending on any additional requests in your application (e.g to sell property) and the amount of information you are able to present to the Court at the outset. It may also be impacted by how quickly you can arrange a capacity assessment to be undertaken. Typically, an application could be processed in between 5-9 months (start to finish).
What happens if I cannot make decisions in the future?
If you have not made a Power of Attorney, your friends, family or Local Authority could apply to become your Deputy and to make decisions for your finances. Best Interests decisions may need to be made on your behalf in relation to health and welfare issues (care, treatment, where you live). These decisions are made by a collective group of relevant people/organisations (most often close relatives, the NHS and Social Services).
What are my options if I do not have any family?
You can choose to appoint a friend that you trust, or an independent professional to act as your Attorney in the future. Tollers have a specialist team which manages the affairs for individuals in this way. Talk to Tollers for advice about your options and how we could support you as a professional Attorney.
How can an LPA help ensure that my assets are protected for my family?
An LPA can allow people you trust to ensure that your money is managed effectively during your lifetime. The money must be used for your benefit while you are alive. An Attorney could ensure your bills are paid up to date and that your money is invested to provide growth. An Attorney could also rent out any property you are not using to provide an income and allow your capital to last as long as possible.
What happens if I need to go into a care home?
Going into a care home should not always be considered as the worst-case scenario. If you need to receive care in the future, your wishes, feelings and needs will be considered to ensure all options are explored. You will only need to go into a care home if this is the last resort for your care and needs to be supported, and to ensure that you are protected from harm. If you have an Attorney or Deputy, they can ensure your bills are managed and that your assets are invested where possible. They should ensure your money is used for you and that you have everything you need to continue to enjoy a good quality of life.
What protection do I have against financial abuse and fraud?
Unfortunately, wherever there is power there is often abuse of that power. The majority of Attorneys who are removed for financial misconduct are close friends and relatives, such as children. The most important thing to consider when choosing Attorneys is to choose trustworthy individuals whose interests will not conflict with your own. Choosing professional Attorneys such as Solicitors may cost a little bit more in the long run but you can at least be assured that your interests will be managed without bias and that your assets will be safeguarded and used for your benefit only.
Talk to Tollers
If you have a question regarding Elderly and Vulnerable Client Law Talk to Tollers. Our well-respected team is on hand to answer your questions.