Carers: Legal considerations for carers

If you're a carer, you may not have realised the law regarding power of attorney has changed. "You used to be able to fill in a form yourself," says Dave Baker, acting chief executive of Carers' Support, Bexley. "Now the forms are quite daunting so you're probably best to consult a solicitor."

Finding a solicitor

A solicitor can give you advice on how to protect the assets of the person you care for. They can advise you how to protect the wishes of someone who is losing their mental capacity, including deputyship applications to the Court of Protection. In addition, a solicitor can advise you on lots of practical matters, such as managing a person's assets, bank accounts and pension when they enter residential care or managing their estate after they have died.

The Law Society is the professional body for all solicitors; they can help you find a local firm, answer common legal questions, offer advice on what to expect when visiting a solicitor and guidance on paying for legal services.

Lasting Power of Attorney

The law regarding Power of Attorney recently changed and there are now two types; one for property and affairs and one for personal welfare, both of which are called a Lasting Power of Attorney. "You can choose to do one or the other or both," says Dave. A Lasting Power of Attorney allows people to choose someone they trust to make decisions on their behalf should they ever lose the mental capacity. This document gives the carer the right to decide what is in their loved one's best interest, should the person being cared for not be able to decide for themselves.

Living will

A living will differs from a Power of Attorney in that it allows people to choose someone they trust to make decisions on their behalf, should they ever lose mental capacity. This document gives the carer the right to decide what is in the person's best interest. A living will differs from a Power of Attorney in that it allows the person being cared for to write down their personal choices for future treatment, safeguarding their intentions should they lose mental capacity in the future.

A living will can include general statements, such as religious or dietary wishes (which aren't legally binding) or specific refusals for treatment called "advanced decisions" or "advance directives". "You have to sign it, date it and get somebody to witness it," says Dave. "Although a Living Will is not legally binding it is a point of reference for doctors who ultimately must do what they feel is in your best interest." It's also evidence for family members of your intentions, should it be needed in the future

Will

A will is a document created by an individual that names an executor (the person who will manage their estate) and beneficiaries (those who will receive the estate at the time of the person's death). It is not a legal requirement to have a will but it is advisable for an individual to make one to ensure their estate is passed on to family and friends exactly as they wish. If a person dies without a will, the assets will be distributed according to the law.

Resources

The Office of the Public Guardian has further information about Lasting Power of Attorney and the Court of Protection.

To find a solicitor, or seek further guidance regarding legal matters, the Law Society can help.

The Citizen's Advice Bureau can offer guidance on making a will or on Lasting Power of Attorney documents.