Help! Mum’s in hospital and I have no legal documents in place
So often, I come across families urgently needing to put in place legal documents for someone who is in hospital.
There are many options available when someone you care for is in hospital. However, which is the best option depends on your circumstances.
Hospitals are a place which already raise anxiety not only for the person needing also for the families around them. Anxiety can cause confusion and panic especially when adding the need to have legal documents in place.
But what happens in urgent situations?
The options depend on the following questions:
1. Does the person have mental capacity?
2. What are the pressing matters that need to be attended to?
Mental capacity
Under the Mental Capacity Act 2005, everyone is presumed to have capacity unless it is proven otherwise.
If a person is deemed to have mental capacity, then they continue to make decisions for themselves. This then opens the door to a number of legal documents that can be put in place by the person themselves.
- Advanced directives/living wills
These are legal documents which allow you to restrict the treatments and medications that can be administered. They’re not the same as “DNRs” (do not resuscitate orders), nor are they your will. Advanced directives can override any legal document relating to your treatment that you already have in place. The list is comprehensive and unlike a DNR, an advanced directive is legally binding and must be followed so long as it complies with the Mental Capacity Act, is valid, and applies to the situation.
These documents are active as soon as they are signed and witnessed.
- General powers of attorney
A general power of attorney (GPA) take effect immediately once signed and witnessed. They work by allowing you to choose someone to make financial decisions for you including access to banks accounts, paying your bills etc.
A GPA is usually used for a set period of time and/or specific purpose and comes to an end when the purpose is achieved, or it expires and will only work if you have mental capacity. If you’re deemed to no longer have mental capacity, then GPAs can no longer be used.
The financial decisions a person makes under a GPA can be restricted to what you feel comfortable and right for you.
- Lasting Powers of Attorney
LPAs are legal documents that allow you to
choose someone to deal with your health and/or financial matters when you are no longer able to make those decisions for yourself.
The LPAs must be signed whilst you still have mental capacity. If these are in place, then it’s important to ensure they have been registered with the Office of Public Guardian (OPG). Without this registration process, the documents, whilst potentially valid, are not active and cannot be used by your attorneys until they are registered.
With significant delays with the registration process, it’s important to have these registered without delay as the process may take up to 20 weeks.
The best option is always to set up Lasting Powers of Attorney wherever possible.
However, if you lack the ability to understand or make decisions, setting up legal documentation may not always be possible.
Lack of mental capacity
If a person understands what’s going on around them and they can make decisions for themselves, then they continue to do so. This is not always a clear case.
In a hospital setting, a person’s capacity can fluctuate through sleep, confusion, medication etc. They may require the assistance of family to support decisions that they may otherwise have been able to have made.
Without legal documentation, families can struggle.
What matters need to be attended to?
In this scenario, it may be too late to put in place the above stated documents.
- Unregistered Lasting Powers of Attorney
Often, LPAs are set up but not registered with the OPG. This is the time to submit the application if they have not already been registered. An attorney can register these documents even where the person has lost capacity.
Applications for both financial and health matters can be made to the Court of Protection. Be aware that health applications can be more difficult to be approved. Both processes can involve a formal court hearing.
The Court process can take over 4 months.
Urgent applications can be made to the COP where a pressing decision, be it health or a financial one, needs to be made. In such cases, depending on the urgency, the application is immediately placed before a judge and a temporary or interim order is granted within 24 hours or sooner.
Whilst this route through the COP may be expensive, it may be the only route available. Therefore, saving costs doing it oneself is never advised as long term, the process can get more complex and even more costly.
These are multi-disciplinary meetings that are arranged for specific decisions about a person’s care. They will involve the care practitioners, doctors, perhaps social services.
Family members are generally invited, but not always. If they’re not invited, then their views should still be taken into account.
Where there is a disagreement with the decision following a best interest meeting, then it would be for the COP to make a decision. A formal application would therefore need to be made.
- “Appropriate person vs Next of kin”
Next of kin have no legal status. In fact, the person need not even be a family member. They are only an emergency contact!
Being a spouse, partner or child does not entitle you to have any legal authority over decisions for someone else. There is no alternative to a formal legal document no matter what your relationship is to that person.
However, under the Care Act 2014, you may be regarded as an “appropriate person.” This is someone who knows you well enough to put forward their views on a particular health decision. These are only for health and not financial decisions. This person can be a family member, friend or a unpaid carer. The opinions of the appropriate person must be taken into account. Therefore, the “appropriate person” is the new “next of kin” with enhanced status, but still no legal authority.
They’re not a replacement for a person who has a legal authority to act on your behalf, nor can they override or enforce any decision. Their opinions are just that with no binding or legal effect.
Planning ahead
We all hear about getting our affairs in order. No one can predict when we are likely to need hospital care. With hindsight, it can often be a regret that such legal documents were not put in place at a time when they could have been. As a specialist in private client matters, working both with older and also vulnerable adults, having legal documentation is something I advise on a daily basis.
These legal documents are not just for when you get to your later years. They are a safety net for the “what if”. More importantly, they are a peace of mind for your family at what may be a difficult time. The security of choice and control to have people you trust to make important decisions about you, when you cannot, are the effect of such legal documents.
Running my own niche firm for over 14 years, I can say with certainty that difficult times can be made easier with the right documentation in place. Using the right regulated expert to help set these up is just as important.