Our experts at Ashtons Legal have been working hard to answer the many questions we have received on a range of legal issues related to Coronavirus, particularly those that need to be made regarding end of life decisions. You can skip to different questions by clicking on the links below:
Can my parent or relative refuse medical treatment?
In these strange times of Covid-19, many people are considering the possibility that they may require serious medical treatment as a result of having the disease. Not everyone will want to receive this life-sustaining treatment, particularly if they feel the prospects of a full recovery are very slim.
If your parent has mental capacity, they will be asked for their consent before medical treatment and are free to accept or refuse it.
But what happens if they have lost mental capacity and cannot accept or refuse the medical treatment themselves? In this situation, the medical professionals will make a decision based on their extensive knowledge and experience.
If your parent knows now that they would want to refuse life-sustaining treatment, it is possible to put the decision into a legal document which is binding on the medical professionals. This is called an Advance Decision to Refuse Medical Treatment (an ‘Advance Decision’).
An Advance Decision is only binding on the medical professional if it is valid and applicable to the situation your parent may find themself in. Also, it is only effective if they cannot make the decision about medical treatment themselves and are unlikely to regain that ability.
For example, a parent may decide to refuse cardiopulmonary resuscitation (CPR), use of a mechanical or artificial ventilator to help them breathe, clinically assisted nutrition and hydration, or other treatments that they choose to specify.
If they are considering preparing an Advance Decision then they – and you – should ideally talk to a medical professional. They will be able to advise as to the effects of refusing the medical treatment in certain circumstances.
Please note that if they already have a Lasting Power of Attorney for Health and Welfare, they may already have given such decision making power to their Attorneys – which may of course be you.
Do Not Resuscitate Order
If your parents have strong views that they do not wish to receive CPR, then in addition to any Advance Decision or Lasting Power of Attorney for Health and Welfare, they should consider completing a ‘Do Not Attempt CPR’ form (DNACPR – also known as a DNR or DNAR).
All of these documents should be kept in a safe place in the home – potentially in an easy to access place, in case of an emergency. Fridges are often checked by attending paramedics for any medication so storing nearby might be an option.
Coronavirus – Do my parents need to make a Will? What happens if they don’t make one?
The current COVID-19 outbreak is posing a global challenge causing uncertainty for both businesses and individuals. During such a time it is only natural to wonder what may happen in the worst case scenario and you were to die.
A Will is a legal document setting out wishes and instructions as to what should happen to someone’s assets after their death.
If either of your parents die without a Will the law states to whom their assets will pass – this is known as the Rules of Intestacy. The following link provides details of how their assets would be divided: https://www.gov.uk/inherits-someone-dies-without-will.
For some people, the Rules of Intestacy are suitable and mean that their assets would pass exactly how they would like them to.
However, there are more reasons to prepare a Will than to just express where assets are to go. These include: expressing funeral wishes; appointing guardians to look after children under the age of 18; and leaving gifts of personal belongings. And it may be that the intestacy rules do not suit every situation, for instance if your parents are an unmarried couple, or if either of them have children from a previous marriage/civil partnership or if they want to make a gift to a charity in their Will.
Please note that there are strict rules about the signing and witnessing of Wills which may be more difficult to organise during the Coronavirus lockdown. We will do our best to find ways through this.
Does Mum need a Lasting Power of Attorney?
A Lasting Power of Attorney (‘LPA’) is a legal document that allows someone to nominate people to step into their shoes to make decisions on their behalf when they are no longer able to make these decisions themselves. These people are known as Attorneys. Be clear, these documents work while someone is alive and end on their death.
LPAs for Property & Financial Affairs replaced the old-style Enduring Powers of Attorney (‘EPA’) in 2007. If your Mum or Dad already have an EPA then this is still valid and does not necessarily need to be replaced with an LPA for Property & Financial Affairs.
It may be worth checking the EPA to make sure it is still suitable as EPAs do not allow for Replacement Attorneys and may contain a restriction that they cannot be used until your Mum or Dad does not have mental capacity. If, in the future, this document needs to be used by Attorneys chosen by your parents, they may be able to do so straight away with their consent.
If their Attorneys believe your Mum or Dad’s mental capacity in relation to their finances is starting to diminish, then they have a duty to register the EPA with the Office of the Public Guardian
The registration process requires certain categories of people are notified and may have the option to object to the registration. If there are no objections, the original EPA will be stamped and you will likely need to update all your Mum or Dad’s banks and other organisations. From this point, it is unlikely your Mum or Dad will be involved with these organisations directly – they will only deal with the registered Attorneys.
There are two different types of LPA: an LPA for Property & Financial Affairs (replaced the EPA) and an LPA for Health & Welfare. These newer documents can be registered straight away so they are ready to use as soon as they are needed.
The LPA for Property & Financial Affairs allows Attorneys chosen by your parents to make decisions relating to finances such as managing bank accounts, paying bills and selling a home. While your parents still have the mental capacity to make these decisions themselves they can do so, or they can allow their Attorneys to act with their consent.
The LPA for Health & Welfare allows Attorneys to make decisions about health and care generally, for example what clothes are worn, what is eaten and where your parent lives. It could also give them the ability to make decisions about end of life care. This document can only ever be used if your Mum or Dad have lost the mental capacity to make such decisions themselves.
These documents are extremely powerful so your parents should only choose Attorneys that they trust to make these decisions.
It is possible to have up to four Attorneys and up to four Replacement Attorneys who could step in and act in the event that originally appointed Attorney/s cannot. Your parents should take legal advice to tailor LPAs to individual needs and explicitly state when and who can use them. It is also possible to include additional wording, instructions or preferences to ensure it covers needs and circumstances.
Court of Protection
If your Mum or Dad was to lose mental capacity without having made an LPA or EPA then anyone – including yourself or other family members – can apply to the Court of Protection to become their Deputy. This is an expensive and lengthy process and, most importantly, means that your Mum or Dad are not the ones to decide who is in control of their assets. For this reason, among others, we would recommend LPAs for all clients of all ages.
What to do if a loved one dies
At this most unusual of times it is sadly inevitable that we are going to lose loved ones, potentially sooner than expected. There are no two ways about it; when someone dies a lot has to be done.
The first things one might think about would be registering the death , organising the funeral, identifying all assets and liabilities that person had and making sure all assets are secure.
If the deceased had a Will it needs to be located. If they didn’t, the estate will need to be dealt with in line with strict rules set down by government, known as the Rules of Intestacy.
If there is a Will it is likely to name an Executor/s. This is the person/s responsible for dealing with all aspects of the estate. If there is no Will, then the Rules of Intestacy set out who can take on the equivalent role, known as an Administrator. Executors and Administrators are both otherwise known as Personal Representatives.
The Personal Representative/s must then deal with all aspects of the estate administration, which may include applying for a Grant of Probate. This is a legal document which confirms the authority of the Personal Representative/s to deal with everything.
Getting a Grant of Probate means gathering details of all assets and liabilities, obtaining specific and relevant details needed to calculate if Inheritance Tax is payable, then making a tax declaration to H M Revenue & Customs and a court application to the Probate Registry. Be careful! Just because there may be no Inheritance Tax to pay doesn’t mean a Grant of Probate isn’t needed. An estate always has be dealt with according to the terms of the Will or the Rules of Intestacy.
Other aspects of estate administration that you may have to deal with include, but are not limited to:
- Paying tax including Inheritance Tax, Income Tax and any outstanding Capital Gains Tax;
- Possible claims against the estate, e.g. challenges against the terms of the Will or the impact of the Rules of Intestacy;
- Paying off any debts – The Personal Representative/s need to be aware that they are taking on personal responsibility for any debts of the deceased;
- Selling property or land;
- Keeping detailed accounts showing all money coming in and going out since the date of death;
- Paying out legacies;
- Ensuring all rebates and refunds have been issued and all exemptions claimed; and
- Locating missing beneficiaries.
This is not an exhaustive list.
Remember! As a Personal Representative you take on personal liability for the deceased’s affairs and must report to H M Revenue & Customs and often other government bodies. Being a Personal Representative is a big job, it is paper heavy, time intensive and often requires detailed and specific calculations of tax allowances and exemptions.
Please feel free to contact one of Ashtons Legal skilled and empathetic Lifetime Planning Team team members for a chat and guidance on your specific circumstances to enable them to tailor our advice to you.
At a time of global emergency and grief, allow them to take away the worry of legal work, letting you have time to grieve and get your life back on track.
Ashtons Legal will be happy to talk any or all of this through with you by telephone, or using video conferencing via Microsoft Teams, FaceTime or WhatsApp. Of course, once the Coronavirus lockdown is over they will be able to meet you in one of their offices.