This is a difficult and uncertain time. It is clear that the most at risk in our community from the COVID-19 pandemic are those with underlying health conditions or of advancing years. Whilst most people don’t make decisions about their future care until they have to, planning ahead in the current circumstances makes practical sense. If you are a member of the most vulnerable groups and become ill, you may not be in a position to make decisions about your own healthcare or deal with your financial or other affairs. You may want to appoint someone to take care of some of these matters for you and you may want to make it clear to the medical and caring professionals what treatment you want and don’t want and where you would prefer to be treated.
The purpose of this blog is to set out in broad terms, matters that you may wish to attend to now. You may want to talk to your partner, relative or trusted friend about these matters or if you don’t feel able to, we recommend you talk to your solicitor or who should be able to help.
You should put together a list, to include the following:
- Full legal name
- National insurance and tax reference number
- Legal residence
- Date and place of birth
- Your passport
- Names and addresses of spouse and children
- Location of birth and death certificates and certificates of marriage, divorce, citizenship, and adoption (with copies)
- Employers and dates of employment
- Names and phone numbers of religious contacts
- Names and phone numbers of relatives, doctors, lawyers, and financial advisers
- Medications taken regularly
- Location of powers of attorney, health and care directions/decisions and other legal documents
- Sources of income and assets (annual tax statements, pension from your employer, interest certificates, etc)
- Social security details and NHS numbers
- Insurance information (life, health, long-term care, home, car) with policy numbers and agents’ names (if appropriate) and phone numbers
- Names and addresses of your banks, building societies and credit unions together with account numbers
- Investment income (stocks, bonds, property) and financial advisers’ names and phone numbers
- Copy of most recent income tax return
- Location of most up-to-date will – keep a copy yourself if you don’t hold the original
- Liabilities, including rates and insurance— what is owed, to whom, and when payments are due
- Mortgages and debts—how and when they are paid
- Location of original title documents for your home and any property you own
- Vehicle registration book and insurance details
- Credit and debit card names and numbers
- Location of safe deposit box and key (if any)
Steps for Getting Your Affairs in Order
Put your important papers and copies of legal documents in one place. This can be a drawer on your desk, study or bedroom. If the original documents are kept outside the house for safe keeping, it’s a good idea to keep copies at home. Tell someone you can trust such as a partner or family member where these papers are. Discuss with this person how you want to be treated should you become ill and are unable to make decisions for yourself. We will discuss this in more detail below.
Give permission in advance for your doctor or lawyer to talk with your caregiver as needed and have a signed authority available. Banks and other financial institutions will not be able to talk to anyone but you about your accounts unless they have authority from you to talk to a nominated third party such as a family member. Most financial institutions and health insurance companies have nomination forms that you can complete whereby you give them authority to discuss your affairs with a nominated person. Have these forms prepared and signed now and confirm that the trusted person you nominate is happy to do this for you. You cannot compel them to act for you in these matters so it is important that you get their consent beforehand.
Take financial and legal advice about the best way to hold your assets.
Important Legal Documents
All these documents assume that when you make them you have the requisite mental capacity* to do so. Normally this means that you remember and can mentally process the information relevant to any decision you are making, understand the decision itself, understand its consequences and can communicate the decision to the relevant parties. Mental capacity is paramount and if you lose it for whatever reason, important decisions about you and your affairs may be taken by other parties.
For more information on mental capacity, click here.
Powers of Attorney and Controllerships
There are two types of power of attorney, a general power of attorney (GPA) and an enduring power of attorney (EPA). GPA’s are normally given to one or more people for a certain period of time e.g. when you have a physical illness and you want to have someone look after say your financial affairs until you recover. GPA’s are invalid if you subsequently lose your mental capacity.
EPA’s can be used all the time, even if you lose your mental capacity and again like GPA’s you can decide what property they relate to (you might decide only certain bank accounts or property) or indeed when they are to come into effect, for example, you may decide that should only happen if you lose mental capacity. The attorney will have all the rights you have in relation to the property in the power so you should only give such a power to someone you absolutely trust. As long as you retain mental capacity you can revoke GPA’s or EPA’s at any time.
EPA’s have more formal requirements than GPA’s and if your attorney believes you are no longer able to manage your affairs, they will have to register your EPA with the Office of Care and Protection in the High Court in Belfast before it can be used once capacity has been lost. You should consult your solicitor about powers of attorney and they will be able to advise you. Alternatively, the Office of Care and Protection can assist you and the Office has the relevant forms for completion.
If you do not have an EPA and lose mental capacity and can no longer make your own decisions, an application for a Controllership Order will have to be made to the Office of Care and Protection to enable someone (such as a partner or family member) appointed by the Court (the “Controller”) to do what is necessary in respect of your financial affairs such as paying bills, investing or transferring money or even the sale or purchase of property. The Court will oversee all such actions and expect reports on them by the Controller.
Wishes for your care
You may wish to write down where you would like to be cared for such as hospital or home, the kind of care you would like and who you would like to be involved in your care and the decisions surrounding it. This record of your wishes is not legally binding and you can’t insist that people care for you but it is an important record for health professionals when they make decisions concerning your care. You should give this document to a family member or a health professional and keep a copy for safekeeping.
Advance Decisions to Refuse Treatment (ADRT)
This is a written statement of your wishes to refuse certain medical treatment. It is for your medical team and may include the circumstances in which you wish to refuse such treatment. It can’t include a request to have certain treatment or to end your life. It can’t be used to refuse basic medical care that would keep you comfortable such as food, water or shelter. At this time an ADRT is legally binding albeit under common rather than statute law. This may soon change. In May, 2016 the Mental Capacity Act (Northern Ireland) 2016 was passed and it makes provision for Advance Decisions and Lasting Powers of Attorney that will allow a person to appoint someone to have the legal power to make decisions about their medical treatment and care including Advance Decisions to Refuse Treatment. Such decisions will therefore move from a common law to statute law basis and should therefore be easier to control and enforce. However this section of the Act has not yet been commenced and at this time the common law rules continue.
You must be over 18 to make an ADRT and you should discuss it with your medical professionals before making it. If for instance you are refusing treatment that would keep you alive (such as being on a ventilator) you must say exactly what treatment you want to refuse and in what situation – such an ADRT must be in writing, signed by you or someone who is with you at the time and witnessed by two people over 18.
An ADRT should include the date it is signed, your name, address, date of birth, GP details, what you want and in what circumstances and when it should come into effect. If it is an ADRT to refuse treatment that would keep you alive, it must include the statement “I refuse this treatment even if my life is at risk as a result.”
A solicitor is the best person to write an ADRT for you and advise you on it.
ADRT’s are not always enforced – for instance if you didn’t have the requisite mental capacity when making it, medical circumstances have changed (e.g. some new treatment may have improved your prognosis and thereby affected your original decision) or you have been influenced by others.
Do Not Attempt Cardiopulmonary Resusitation (DNACPR)
A DNACPR is a written record of a decision not to treat someone with cardiopulmonary resuscitation (CPR) if they have a cardiopulmonary arrest. If you have an ADRT it may already be in it. Again you should discuss this with your medical professionals. A DNACPR should be in writing and signed by you if possible or by your treating doctor. It must be given to your health professional so that it can be recorded on your medical file. The DNACPR is not binding but your healthcare team will take your wishes into account should you have a cardiac arrest. You should ensure your family or caregiver knows about it. You can revoke it at any time and if you do, make sure it is recorded on your medical file.
Everyone should have a will. If you don’t have one, your estate (your property and money) will be divided under the rules of intestacy and this may mean that the people to whom you want to give your property, won’t get it. A will allows you to appoint someone to deal with your estate (your executor) and make provision who should inherit from it. It allows you to appoint legal guardians for children under 18 and provide financially for your dependents. It may also minimise any potential tax liabilities. It may even help avoid family disputes.
For a will to be legally enforceable, there are necessary legal formalities. A solicitor is best placed to advise on all these matters and you should contact a solicitor to assist you in preparing and executing a will. You should be able to find a directory of local lawyers on the internet or from the Law Society of Northern Ireland.
Disclaimer: This blog contains general information about the legal topic discussed. It does not deal with every important topic nor cover every aspect of the topics with which it deals. It does not constitute legal advice, nor should you rely on it as legal advice. If you have any legal problems, please seek advice from a solicitor.