Power of Attorney v Care Home Costs

With headlines in the Daily Mail asking for the Foreign Aid budget to be used to tackle the crisis in social care and the front page of the Times leading on “Parents call in lawyers over soaring care costs” social care for the elderly is firmly in the spotlight.

Whilst exploring this emotive issue, the Times article claims that couples would “rather die” than see their children pay excessive care home fees. A worrying assertion is made that people are putting in place Powers of Attorney in order to give their children the legal authority to make end of life decisions by withdrawing medical care.  

Whilst granting a Power of Attorney can give significant powers to the attorney to make welfare decisions on behalf of the grantor, the overriding principle of the Act governing the law in relation to Adults with Incapacity is that all decisions taken must be for the benefit of the incapable adult.  The notion that Attorneys could withhold medical treatment purely in order to avoid care costs is abhorrent and rather than encouraging people to take positive steps to deal with their affairs, it is likely to discourage those considering granting a Power of Attorney.

The issues highlighted by these newspaper articles are, however, relevant to our ageing population. They serve as a timely reminder that managing your affairs by granting a Power of Attorney, putting in place an Advance Directive (also known as a Living Will) and making or updating your Will are important and necessary to make your wishes known.

Granting Power of Attorney remains a sensible thing to do, especially given that if you do not have one in place and then lose capacity, your loved ones can not simply “step in” to deal with your affairs, they face a lengthy and expensive court process to be granted authority to deal with your affairs.

Perhaps more appropriate in the circumstances described in the newspaper article above, a Living Will is a written statement detailing a person's desires regarding future medical treatment in circumstances in which they are no longer able to express informed consent. This is also called an advance directive and can be used in parallel with a Power of Attorney document.

For advice about Powers of Attorney, Advance Directives (Living Wills), Adult incapacity, vulnerable adults, care for the elderly, care costs and asset protection including Wills and Trusts, talk to Thompsons.

Head of Private Client at Thompsons, Shona Macnaughton specialises in providing advice to older people and their loved ones and is a member of the national association, Solicitors for the Elderly.