My Health, Welfare and ‘The Incapacity Crisis’: Am I at Risk?

We are a society that is living longer; that much is clear. There are currently 12.8 million people above the age of 65 living in the UK. This figure is set to increase and it is predicted that in 2025, the UK will have 15.4 million over 65s.

As we are living longer, more of us will face medical conditions that will hinder, limit and may take away our capacity to make our own decisions.

Conditions such as dementia, are increasing. In a 10-year period, the number of people diagnosed with dementia in the UK increased by 53.4%. It is estimated that in 2025, there will be 1 million people diagnosed with dementia living in the UK.

The rates of other capacity restricting health conditions, such as strokes, are also increasing. It is forecast that in the next 20 years the number of strokes across the UK is set to increase by 44%.

These issues prompted the production of a recent report by a specialist body of lawyers (“SFE”) which looked into whether we are prepared for incapacity.

The report found that 73% of the population (over 48.5 million people) are worried about incapacity.

Although many people are concerned about the possibility of incapacity, the report found that people are ill prepared for it. It is this finding that has led the SFE to warn that we are facing an ‘incapacity crisis.’

If you lose capacity through dementia, stroke or accident, and are unprepared for it, who will make decisions regarding your health and welfare? The answer to this varies, but what is clear is that it will not be your nearest and dearest.

Where end of life medical decisions need to be made on your behalf, only doctors acting in your best interests will have the authority to make those decisions. Your doctors will also be able to make those decisions without the consent of your spouse and/or relatives.

If you were in need of full-time care and a care home was the most suitable option, social services can choose a care home for you, which may not be close to friends and family. There have been some instances where individuals have been placed in care homes as far as 200 miles away from friends and family.

In order to avoid the above situations, you must make the necessary preparations whilst you have the capacity to do so, to ensure you have appointed people you want to make these decisions if these scenarios arise.

A Lasting Power of Attorney for Health and Welfare (“Health LPA”) will enable you to authorise those you would like to make decisions regarding your medical treatment and care arrangements. You can also authorise (if you so wish) those people to make decisions regarding whether you receive life sustaining treatment or not, when you cannot communicate your wishes due to incapacity.

When making a Health LPA you should discuss your wishes with those you want to make your decisions, so that they are aware of exactly what you would want to happen if and when you cannot make those decisions for yourself. This will ensure that should this situation arise, they will be able to do so in the knowledge that they are fulfilling your wishes.

Where you have lost capacity and do not have a Health LPA, the only option available is to apply to the Court of Protection for an Order giving power to the applicant (often a family member) to make such decisions. If granted the application will take a minimum of 4 – 6 months, however, it is estimated that 90% of applications are not approved.

Since obtaining an order from the Court of Protection is so difficult and time consuming, it is essential that if you want certain people to make health and/or social care decisions for you, you have a Health LPA in place.

We are experts in this area and have over 20 years’ experience in creating Powers of Attorney. We are, therefore, able to help you set out your wishes using the correct terminology so you have the peace of mind that if the Health LPA is ever needed, it will enable your loved ones to carry out your wishes.

Please contact us if you would like more information about the issues raised in this article on 029 20 34 55 11 or