In the belief that her mother is living with dementia, Ms CB is left questioning what the future might hold. Her mother denies her condition and refuses to discuss any potential Power of Attorney (POA) or Enduring Power of Attorney (EPOA) ahead of her assessment next month. As her mother’s only child, Ms CB is anxious and uncertain about the protocols should her mother fail to sign any documents in time. She’s worried about the possibility of arranging care home placement or home assistance for her mother without an EPOA, and how safe it is for her young child to be around her mother.
Even though the thought of surrendering our independence is daunting for many, we must appreciate the importance of pre-emptive planning for any future need for assistance. An EPOA serves this very purpose. It is critical to comprehend that an EPOA does not lead to a loss of control over one’s affairs, it simply offers a safety net should the need arise. It places the control in your hands, allowing you to designate who should make decisions for you if you no longer can, and to what extent they can decide on your behalf.
The EPOA remains redundant if you can manage your own affairs fully until your demise. At this point, it has no influence on estate management which becomes the responsibility of the executor(s) you’ve mentioned in your will. The executor(s) may or may not be the same people who you’ve assigned as your attorney(s); the power to decide lies entirely with you.
The activation of an EPOA requires the medical approval from a doctor, usually your GP, certifying your inability to make decisions independently. In such a situation, it is comforting to know that the decisions will be made by a person of your choosing, someone you trust, who is familiar with your preferences, and can either make decisions for you or assist you in making them.
I find it perplexing that many individuals exhibit a strong aversion towards even contemplating the idea of formulating an enduring power of attorney. My view is that it represents a straightforward choice in terms of experiencing life of your own volition, even when you no longer possess the cognisance to actively make those decisions on your own.
Naturally, the primary factor when initiating an enduring power of attorney is ensuring that you are fully aware of what you are embarking upon. Validation by both a medical practitioner and a lawyer assure that you comprehend the procedure, are acting autonomously, and are of sound enough mind to do so.
In your particular circumstances, given that you believe your mother’s diagnosis to be accurate, the moment for contemplating an enduring power of attorney has already passed. Hopefully, the upcoming medical evaluation will provide definitive confirmation.
Given this, there’s little merit in pushing the matter with your mother. This could merely upset her or make her more defiant towards your guidance, and neither outcome would be beneficial for your current predicament.
That being said, it doesn’t mean all options are closed to you. Indeed, no one desires a scenario where a grandchild lives in fear of his own grandmother.
In the not so distant past, when a person requiring care was uncooperative, loved ones or friends had no option but to endure a lengthy, costly and frequently unsatisfactory ward of court process. This could generate conflict and result in significant emotional distress, particularly for your mother in this circumstance. In the meanwhile, if she was incapable of handling her affairs, she might have been constrained.
Within the ward of court framework, the High Court president would request two medical opinions on the potential ward’s capacity to handle their personal matters. If they were deemed to require aid, the court would appoint a “committee” consisting of one or more individuals to oversee the welfare and financial matters of the person being designated a ward of court, along with a case officer for court communication.
There was no stipulation that these appointees should be acquainted with the individual being assigned as a ward of court.
This was because virtually each decision concerning the ward – from settling bills to consenting to medical treatments or even getting approval for an overseas vacation – necessitated explicit court approval. All these procedures had financial implications, typically falling on the ward of court’s assets.
Generally, with the granting of the wardship application, their bank accounts would have typically been closed with the court assuming responsibility for the funds. It would also manage any incoming payments, such as pensions or other social benefits. Furthermore, if the court deemed it necessary for the individual to go into residential care, it could take the decision to sell their home. Despite the overall aim being the care of the ward, the process could often be impersonal, sometimes overlooking the diverse capabilities of the wards, with personal aspects entangled in the bureaucracy.
However, there is a positive development, as wardships are now obsolete. No more individuals are being made wards of court, and a review is underway for those already in such positions. The Assisted Decision-Making (Capacity) Act 2015 was made into law in December of that particular year, but its implementation started only in April of the following year. It is applicable in an array of situations where a person requires assistance in decision-making, including enduring powers of attorney and advance healthcare directives. The latter enables people to specify their preferred care and most crucially, to give directives about they do not want, such as resuscitation.
This Act gave rise to a Decision Support Service, which supervises all the different possible agreements. Only the agreements formulated in the correct manner and registered or informed to the service hold legal authority.
In accordance to the circumstances, your mother can utilize three different levels of decision-making aid based on her disability degree or ability. This fresh Act believes that we all possess some ability, and should be allowed to retain maximum control over decisions.
The most basic level of support offers your mother the option to appoint someone she trusts as a decision-making assistant in areas she feels she struggles with when making decisions independently. This agreement allows her to specify those decisions where she needs help – whether it is in one or more areas of personal care and well-being, or regarding financial matters or property – anything at all.
The assistant she appoints will aid her in gathering necessary information for decision-making in the mentioned areas, clarify it to her and assist her in weighing the pros and cons before reaching a decision. These agreements can continue for a maximum of three years and can be renewed. She is free to maintain more than one agreement covering varying decisions and to have more than one assistant for each agreement.
Next, the co-decision making pact is introduced, in which your mother feels unable to make certain decisions rather than merely struggling with them. She still retains the power of choosing who aids her and the decisions they assist with. In contrast to a decision-assisting party merely guiding her towards her own choice, with a co-decision making pact decisions must be conjunctive – requiring both your mother and her chosen helper.
This degree of assistance requires your mother’s capacity to be medically validated by a doctor to ensure she’s able to enter such a pact. An obligation is placed on informing and providing a copy of the agreement to spouses and adult children. It is permitted to have multiple co-decision making pacts, however, only one person is allowed to help make decisions for each agreement.
Lastly, an option exists for you to request the appointment of a decision-making delegate to manage your mother’s affairs, akin to a ward of court. This decision necessitates confirmation by the court based on the initial application and medical assessments. Decisions regarding who can apply for a decision-making delegate is broad, including your mother, spouse, civil partner or cohabitant, any adult offspring, anyone currently acting under a previous agreement, the Decision Support Service itself, and even a non-family member such as a friend, granted they have court approval for the initial application.
In this legal procedure, both the applicant, likely yourself, and the “relevant person”, or your mother, can opt for legal assistance. It’s a transparent process wherein those qualified to make such applications must also be notified when an application is made by someone else.
The court’s first step is to evaluate your mother’s decision-making capacity via medical evidence. It then determines whether to designate a decision-making delegate and the decisions that individual will be responsible for on your mother’s behalf. The focus remains on considering your mother’s desires and limiting the court order’s scope as far as the decisions it encompasses.
The court must be convinced that all other less intrusive alternatives have been explored to address an individual’s personal matters, particularly the two agreement options mentioned earlier that involve lesser intrusion.
When given a chance, the court will most likely nominate someone who is known to your mother, possibly yourself, to be the representative responsible for decision-making, provided that you have the necessary skills and ability to perform the role. If no one is available or capable to undertake this duty, a representative will be appointed from a board assembled by the Decision Support Service. Said representative would then be reimbursed using your mother’s assets for executing the role’s responsibilities.
It is within the court’s discretion to assign the role to more than one individual, deciding whether they can function autonomously or need to make every decision collectively. Either way, those appointed are only authorised to act within the prescribed bounds of the court order.
Despite the enhancements brought about by the Assisted Decision-Making (Capacity) Act 2015, securing the required assistance for your mother can be a disputed process, especially if she is firm in her conviction that it is unnecessary. Even in the absence of such resistance, it can cause distress and anxiety within the family. Nevertheless, the modifications represent an improvement over the ward of court procedure, by offering more options and emphasising the promotion of rights and interests of individuals who may require help with decision-making, and presuming everyone possesses some capacity to make their own decisions or participate in the decision-making process.
If your tentative diagnosis is validated, you may want to consider implementing one or both of the agreement options.