Importance of P.O.A. and Advance Decision

Benefits, finances and funding
1

My husband suffered a stroke at New Year 2022 and was discharged to my care after nine days. Thankfully he didn’t suffer major communication problems or other issues, just very unsteady (and still is) and has some relatively minor memory issues.

After a week of being at home, we both said in unison ‘I think we need to discuss Power of Attorney’ and burst out laughing.

It’s not an easy topic to bring up, but the stroke brought home to us, how difficult it could be if things had been much worse. I might have had to go to the Court of Protection in order to get legal power to act on his behalf.

However, making a POA is actually remarkably easy - despite being a bit long-winded.

First of all there IS a cost - but a discount is available for those on benefits and low incomes.

Second - You CAN do it yourself. You do not need to pay a Solicitor or some other person to do it for you - as THEY will charge. My brother sorted out changing my Dad’s POA and ended up paying nearly £1000 when it could have been done for around £85 if he did it himself.

Third - there are TWO forms - one for Health and Welfare and another for Finance and Property. You will need to decide which the person needs to complete - or BOTH. There is a fee payable for EACH form.

The form is available online if you have internet access - or ask at a local library if they can help you find it as most have computers for public use.

It is a long-winded form with many repeated pages which can be left blank, as it caters for adding multiple Attorneys. C.A.B. can sometimes help with completing the form or if you have a trusted friend, ask them for help.

You do need a witness to sign in several places through the form so care needs to be taken to ensure they have signed in all the right places.

Once the forms are posted off, you receive an acknowledgement and then, if everything is OK, in a few months (yes MONTHS) you should hear back to say it’s been registered and eventually you get a Certified copy of the POA and can then act on behalf of the Donor (the name given to the person making the POA). Copies no longer have to be Certified by a Commissioner of Oaths as the ‘Donor’ can sign copies to authenticate them.

Whenever we go to hospital appointments or similar, I have a copy with me, just in case I get an awkward ‘jobsworth’ who doesn’t think I should be involved in discussions. Once I wave it at them, they usually cave in.

Then the far more difficult topic of Advance Decision.

Again, we both discussed this. In essence it is what is sometimes called a ‘Living Will’.

G decided he does not wish to be kept alive artificially. I agree as I don’t think it is dignified and at some point, a machine would need to be switched off and that would be so much worse.

We have both stated that CPR should be attempted if considered suitable, but not repeatedly if in the view of the medics there is not much hope of recovery. Neither of us wants to be in the position of finding the other lying in a bed with a ventilator keeping us alive with no prospect of recovery.

It’s a very emotive subject and not an easy one to raise, but it is a LOT easier to have this type of discussion when both parties are relatively fit and healthy so there is no pressure.

We have discussed our thoughts with our GP and it is registered with him so is available to any medical practitioner who needs to know. On a hospital admission we will ensure that the hospital knows the AD is in place so they can check it if necessary. Our Health and Welfare POA’s backup this decision.

I would urge everyone, Carer or Cared For, to think seriously about both these topics as it can ease the heartache of making decisions when pressure is on. A POA does not take away decision making from a person, it just means that they can allow a trusted person to help. Legally that person ALWAYS has to act in the Best Interest of the ‘Donor’.

I am sure this will spark a lot of discussion. I am not legally trained, just commenting on my own experience, so if in doubt DO seek Qualified Legal Advice.

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2

I too urge consideration of power of attorney.
My lovely late husband suffered strokes, vascular dementia and other health issues. When he was in an assessment hospital, I mentioned power of attorney. Had to use simple terms. He said it was a good idea. The following week he deteriorated rapidly, and had no idea what I was talking about. So, I had to go down the court of protection route. Very intrusive, very expensive! We had seperate bank accounts, which worked weii for us when younger. I did get used to it but explaining every thing I spent from his account was awful, especially as we always considered our monies as that,ours, not his or mine.
I have power of attorney set up for myself now, my 2 daughters are named.

3

EVERYONE over 18 needs to consider this, and the need to make a will. So much easier when you are young and fit. Unusually, I became a home owner when I was 19 and married. When we went to Australia to work, when I was 21, we made wills which made provision for any future children. I remember the solicitors clerk saying we were very good doing these so young, he must get round to doing his - he was 56!! Our first wills were suitable for many years. We updated them in 2003 when we went back to Australia for a holiday, after a reminder from eldest son.

4

We convinced Mum to go for it about 6 months before we needed it. We’d discussed it a few times. I think she realised she was losing her ability to make decisions and she was regularly coming to me for advice she wouldn’t have needed a few years before. Absolutely I recommend it.

We’re currently discussing our own needs in this area!

5

I like to think that when it’s all done you can stuff it in a drawer and more or less forget about it. My eldest son and I use the same solicitor which will hopefully make things easier when needed.

6

I have not done my will yet. I do not know who to use.

7

Hi Thara - some charities have will writing days/weeks. Check for them in your area. Age UK often does that sort of thing, but most of the larger charities have one from time to time. They tend to be very cheap as thy’re done by solicitors who waive their fees in the hope of getting a legacy in the will for that charity.

8

Hi Thara.

Charles is right, many Solicitors join in schemes to write Wills for free with a ‘request’ (but no obligation) that the Donor includes something in the Will for a particular charity. You can ring round local firms to ask if they do this sort of thing.

Alternatively, Stationers (high street or online) sell Will Packs which include a standard form and notes on how to write your own Will. They give standard wording and, as long as your Will is straightforward, this is a cheap way of sorting it out.

There are ‘Will-Writing-Services’ who advertise, but be careful to ensure the people doing the work have the right experience and expertise as you (or the Beneficiaries) are unlikely to have any come-back if things are not quite right. Also there are sites online which provide forms to write your own and then charge a small amount for you to print it out. I’ve looked at a couple of them and they seem straight-forward to use.

At the end of the day, a Will is just be a simple letter explaining your wishes, and as long as your signature is properly Witnessed it should be fine. SO much is made of HAVING to get a Solicitor draw up a Will, but these days it’s not always necessary.

One thing to watch for is who will be your Executors. Speak to whomever you would like to sort things out to ensure they are happy to do so. Many Solicitors will offer to be your Executor, but remember they are making sure they get more work in the future as they will charge Standard Fees for doing so (every letter and phone call…) and that can mount up. If you ask a Friend or Relative, perhaps include s note about them being authorised to claim reasonable expenses to cover their time and costs.

I hope this helps.

Chris

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9

I have done a will but not updated as frankly I do NOT want my husband to be able to access my pension if I go first - highly unlikely given the age difference. I accept that I cannot leave the house to a cat charity as it would make him homeless plus in fairness, he has contributed via his pension to the upkeep BUT I am seriously thinking of making it a condition that when he dies it goes to a cat charity. This would stop him getting equity release. He has no accounts of his own but we do have a joint account for day to day running of the house plus a joint saving account. I am hoping if we get to the Memory Clinic and some form of vascular degeneration is found, that the staff may bring it up.

It is tricky as husband a control freak although over the last few years, I have taken over more and more of the financial affairs and running of the home.

10

Depending on the circumstances of ownership of the house, whether it is in your name or joint names etc, you can always leave your half or the whole house i fit is in your name, to anyone or a charity, but can give him a ‘life interest’ in it. That would mean that he can continue to live in the house until he dies and then the remainder of your Will is enacted and it goes to whoever YOU have stated. That is something you would need to consult a Solicitor about but it is perfectly legitimate.

My parents were very lucky to have a house, the value of which would have pushed us beneficiaries into an Inheritance Tax position, so they ‘split’ the asset and became what is called “Tenants in Common”. When Mum died my brother and I as Executors technically had control of her half of the property and Dad continued to live there. The only issue is that technically he should have paid rent to her Estate, but we worked out a simple way of him paying maintenance on the property which equated to a ‘rent’. When he moved into a Retirement Village, the house was sold we held the capital for a while in case it was needed for his benefit, but then distributed in in accordance with her Will as he had enough capital for his upkeep.

As I say, you do need to check with a Solicitor for this but there are simple ways to ‘protect’ your wishes.

t’s not nice when you have to think a couple of steps ahead like this, but if you consider he may have dementia, then you are also protecting HIM as he will not be able to make legal decisions if his judgement is impaired and he could be open to exploitation by unscrupulous people.

11

The house is in my name Chris. It belonged to my late father and for tax reasons we never transferred it to joint names. My husband thinks it is in joint names though and not going to tell him it is not , as if he changes his will and leaves what he considers his half to his sister, then it will be void. I would let him live in it until he died though, as otherwise he could contest the will as in fairness, his pension has paid most of the bills over the last 10 years. He is 23 years older than me. He has co morbidities and I really do not think he will outlive me but if he goes into hospital and I get some free time, I would definitely look at changing my will.

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12

It does. Thank you. As of today I have happily found a local lawyer but will call on Monday to ask.

13

Good to hear that. Hope you get a good reception from them.

Don’t be afraid to ask them for a quote (not just an estimate) of their fees. They should give you a ‘free’ 20 mins initial interview/consultation.

C

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14

Thank you. Any tips will be appreciated.

15

I would suggest you spend a little time thinking things through.

A Solicitor will probably want to check your ID as well if they don’t already know you. Driving Licence or Passport. That sort of thing. It’s all down to Money Laundering regs - and a pain in the …

Probably a good idea to make a list of all your assets - house, savings, car, pension and anything else you may have.

Then think about any funeral arrangements you would like to have in place as that can be included. The most important thing then is to thing whom you would like to benefit from your Will. If you want your husband to have a ‘life interest’ in the house, so he isn’t homeless then that can be incorporated. It would ensure he cannot sell it and Spend, Spend, Spend and your ultimate Beneficiaries would then be protected. I am sure that they will have experience of this sort of situation.

Consider also whom you might want to appoint as Executor/Trustee. Solicitors will charge as I think I mentioned previously, so it’s something to take into account, but they will still be around for years to come!

Its a lot to think about, but as you go through each bit, it should help to focus you mind.

Good luck.

C

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16

Thank you for the advice. I will make initial contact by email soon.

17

Couldn’t agree more, Chris. One thing I’d add is that if both a POA and AD exist then it’s the more recent one that takes precedence. Also, since it’s not clear yet whether my dad will be able to conclude a so-called ‘valid and applicable’ advance decision, the very fact we’ve discussed the content should mean that my sister and I are better informed attorneys.

18

Tom,

We are fortunate that we know each other’s minds with regard to Advance Decision so with us there is no conflict. Indeed the discussion with our GP ensured that he has no doubts over our wishes either. Just good to have had the discussion before it comes to trying to make decisions under pressure.

Best wishes

Chris

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19

When Mum became too ill to live on her own, the social worker did a mental capacity assessment and was going to make a “best interests” decision, until I pointed out that we had Power of Attorney for health and wellbeing, and we also had instructions from Mum going back years - in writing. They didn’t fit the proforma but the views were clear and clearly expressed. Tbh the decision wouldn’t have been any different, but a lot of the soul searching and questioning wasn’t required as we had a clear decision from the past.

Barring that, making notes of any discussions during moments of clarity, if it’s not possible to go down the formal Advance Decision route, may be of some help.

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