If a loved one is seriously injured, what rights do you have to make decisions about their treatment or to manage their finances? The starting point is to ask whether, despite their injury, your loved one still has the mental capacity required to make their own treatment decisions or to manage their financial affairs.
The test to assess mental capacity is contained in the Mental Capacity Act 2005. First, determine if there is a mental impairment and, if so, see if it prevents them from making a specific decision, even with practicable steps taken to support them. It is important to note that if they have the capacity, they are free to make their own decisions, even if you disagree or think it is a bad choice.
The capacity to make treatment decisions and manage financial affairs is independent of each other, so it is possible that someone may have the capacity to run their own finances, but not to make their own treatment decisions, or vice versa. If your family member is assessed to lack capacity in either or both areas, then you must find out whether they had previously made a power of attorney when they did have capacity.
Power of attorney and deputyship for injury victims
There are two different types of Lasting Power of Attorney (LPA) that someone can now create: one covers health and welfare, and the other covers property and financial affairs. The terms of the LPA will set out the extent of an attorney’s power; it is essential to check what it says. More than one attorney may be appointed, and if so, you must know if they can act singly or not.
If only a financial LPA has been made, that attorney clearly cannot make any health decisions. Indeed, previously, you were only able to make an Enduring Power of Attorney (EPA), which only covered financial affairs, so these EPA attorneys cannot make any health decisions.
In the absence of an attorney, when faced with a patient without the capacity to make treatment decisions, the hospital may consult the next of kin to find out the patient’s wishes. The next of kin has no right to make treatment decisions for an adult family member. However, a next of kin can make decisions for a child under 18 years old if they are the child's parent or guardian.
Likewise, if no attorney for a loved one is unable to handle their own finances, due to a lack of capacity, then you will need to apply to the Court of Protection to appoint a deputy with the power to manage their assets. Depending on the circumstances, the deputy could be a family member, but the process can still be lengthy. However, when financial affairs are complex or of high value, the Court may prefer to appoint a professional deputy. At Higgs, we have a specialist Court of Protection team who assist when a deputy needs to be appointed.
Emotional and financial support for families
Family support
For some clients, their family and friends may provide an important network; they must also be supported in adjusting to the circumstances the client may face. Often, family members can be overwhelmed with the early stages of support. Our client support team can discuss available support and provide insight, ensuring family members are informed of the possible next steps.
Access to services
Our client support team recognise that when you have a serious injury, you want to ensure that you access the relevant support at the right time. Often, you may not know the available services, and it can become confusing to navigate. You may also struggle to articulate what services you need. This can all be incredibly frustrating. Our client support manager can discuss your current priorities with you and discuss some options that may be available.
Psychological support
When our clients have experienced a crisis, they, their family members, and their close network can feel overwhelmed. If this is the case, then please share these concerns. These feelings are very common and can manifest in several ways, including being tearful, feeling frustrated and angry. Our client support manager can liaise with you to ensure that you have information on available support, including mental health services and bereavement services.
Liaison with services
Some of our clients may need support to understand the available services and how to access them. They may experience difficulties in expressing their needs and may ‘downplay’ their current circumstances. The client support manager can liaise with relevant services for them, if the client wishes, and supplies a signed form of authority.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
